On November 8, 1994, Manuel Inocencio Lalvay Guamán (hereinafter
“the petitioner”) submitted a petition to the Inter-American
Commission on Human Rights (hereinafter “the Commission” or “the
IACHR”) against the Republic of Ecuador (hereinafter “the State”),
in which he alleged violations of the following rights protected by the
American Convention on Human Rights (hereinafter “the American
Convention” or the “Convention”):
the right to humane treatment (Article 5) and the right to personal
liberty (Article 7), in violation of the obligations set forth at Article
1(1), to the detriment of Mr. Lalvay Guamán.
The parties reached a friendly settlement agreement in this case on
February 26, 1999. This
report contains a brief presentation of the facts and the text of the
agreement, in keeping with Article 49 of the Convention.
On May 26, 1992, the jewelry store owned by Mr. Angel Guamán,
where Mr. Segundo Malla, the petitioner’s brother-in-law, works, was
robbed. Mr. Angel Guamán accused his employee of having performed
the robbery. On July 7, 1992,
Mr. Malla was detained at his home, and taken to the Office of Criminal
Investigation of Pichincha (Oficina de Investigación del Delito de
Pichincha) (hereinafter “OID-P”), where he was tortured by agents
of the OID-P; he recognized agent José Alvarado.
Through efforts by Mr. Malla’a attorney, he was released that
same day; no police report was drawn up nor any statement signed.
On July 8, 1992, a police report was presented with a statement,
supposedly signed by Mr. Malla, in which he stated he was guilty and
implicated the petitioner as an accomplice.
The Sixth National Commissar initiated proceedings, without any
detention, against Segundo Malla and Manuel Lalvay. In those proceedings,
expert handwriting evidence was requested of the signature that appears in
the statement of the police report, and it was determined that the
signature at the OID-P was falsified.
In the wake of this expert’s report, on October 25, 1993, the
Ninth Criminal Judge provisionally dismissed charges against the
petitioner and Mr. Malla. On
April 6, 1993, the petitioner was arrested arbitrarily at his shop by OID-P
agents, without a judicial warrant, giving as the reason that he had
supposedly been accused of being a criminal by residents of the La
Colmena neighborhood. The
petitioner identified the agents as José Alvarado Pinzón, Luis Ortíz
Flores, Jorge Espinoza Méndez, and others whose names are unknown.
The petitioner also alleged that the day after his arrest, on April
7, 1993, after being transferred to the Police Barracks, at approximately
10 a.m., he was taken by agents Ortíz and Espinoza to the place called
“La Terraza,” where agent José Alvarado was present, and where
the petitioner was the victim of physical abuse and torture by the agents.
The petitioner alleges that agent Alvarado told him that it was all
so that he would learn that he was not going to be subject to any trial
for falsification of signatures, and that the petitioner had better take
responsibility for what he, Alvarado, was being accused of. The fact that
the harassment continued for two more years led to this complaint before
the Commission. He alleged
that he was stripped and his hands tied behind his back, after which he
was submerged in a tank of water. In
addition, he said, a pillowcase with gas was placed on his head, and that,
when he was almost unconscious, he was held up by rope and then violently
dropped to the floor, fracturing his teeth.
In addition, he stated he was tortured by electric shock.
When they saw he could bear no more, they stopped the torture.
After this torture session, the petitioner was taken to the Office
of Miscellaneous Matters to have his statement taken.
The intent of the agents was to coerce him into accepting that he
had committed a crime, and into signing the statement. To this end, he was subjected to further physical abuse.
When he refused to sign the statement, he was taken once again to
the CDP, where he was held until his release.
The petitioner filed charges against these agents for torture,
bodily injury, abuse of authority, kidnapping, and unlawful entry.
On April 15, 1994, the petitioner was once again visited at his
shop by agents of the former OID-P, renamed Judicial Police, who attempted
to arrest him without a judicial warrant.
After the petitioner put up resistance, the agents summonsed him
April 18 to the offices of the Police, for questioning.
On April 16, the petitioner appeared, with his attorney, at the
Fourth Police Station, to inform the authorities of what had happened the
previous day. The petitioner
stated that on April 18 he went to the police with a member of the Comisión
Ecuménica de Derechos Humanos (hereinafter “CEDHU”) to comply
with the oral summons from the agents, but once he was there it was
discovered that no such summons had issued, nor were those agents present.
On April 19, Captain Diego Cruz visited the petitioner to ask that he try
to pick out the agents who visited him from photos, but they did not
appear in any of them.
On September 8, 1994, members of the petitioner’s family, Mrs.
Piedad Malla, his wife, and Mr. Segundo Malla, his brother-in-law, were
also assaulted, with blows and cuts, by Mr. Angel Guamán, who originally
accused the petitioner of having robbed jewels from his jewelry store. The
victims turned to the Fourth Police Station to lodge the complaint; Angel
Guamán also went there, asking that the Commissar arrest the
above-mentioned persons. Immediately
the Commissar issued the arrest warrant, in response to which a member of
CEDHU went to the Police Station to set forth the case and ask that the
warrants be revoked.
On October 20, 1994, the petitioner was detained once again at his
shop with no judicial warrant, and taken to the offices of the Judicial
Police, where his identity card was taken from him, and several photos
were taken of him, from different angles, for no apparent reason.
Three hours later the petitioner was released.
The petitioner stated that until the day his complaint was filed
with the Commission, November 8, 1994, he continued to be a victim of
constant harassment by the Judicial Police, especially as they told him
they were going to visit him at certain times, yet none of the threats was
ever carried out.
Due to indigence, on not being able to pay the fees for defense
counsel, the petitioner discontinued the private accusation against the
agents of the OID-P for torture, as a result of which the case was
declared abandoned by the judge. Thus,
the case passed into the hands of a prosecutor, and the petitioner ceased
being a party to the proceedings, and so was not able to claim
compensation The petitioner
stated that the Ecuadorian State has international responsibility beyond
the penalty that may be imposed on the individuals who directly violate a
given human right.
PROCESSING BEFORE THE COMMISSION
On November 8, 1994, the Commission received the complaint in this
case, which was not opened until April 18, 1995.
The case was processed as per the Commission’s Regulations.
On February 1, 1999, the petitioner sent information in which it
stated that the Office of the Attorney General of Ecuador had initiated
direct conversations with the petitioner aimed at initiating the friendly
settlement process based on elements accepted by the petitioner.
On February 25, 1999, the respective agreement was signed in the
city of Quito, Ecuador.
THE FRIENDLY SETTLEMENT AGREEMENT
The Friendly Settlement Agreement signed by the parties reads as
Ecuadorian State, through the Office of the Attorney General, with a view
to promoting and protecting human rights and given the great importance of
the full observance of human rights at this time for the international
image of our country, as the foundation of a just, dignified, democratic,
and representative society, has decided to take a new course in the
evolution of human rights in Ecuador.
Office of the Attorney General has initiated conversations with all
persons who have been victims of human rights violations, aimed at
reaching friendly settlement agreements to provide reparations for the
Ecuadorian State, in strict compliance with the obligations it acquired
upon signing the American Convention on Human Rights and other
international human rights law instruments, is aware that any violation of
an international obligation that has caused damages triggers the duty to
make adequate reparations--monetary reparations and criminal punishment of
the perpetrators being the most just and equitable form. Therefore the
Office of the Attorney General and Mr. Manuel Inocencio Lalvay Guamán
have reached a friendly settlement, pursuant to the provisions of Articles
48(1)(f) and 49 of the American Convention on Human Rights and Article 45
of the Regulations of the Inter-American Commission on Human Rights.
following persons were present at the signing of this Friendly Settlement
Dr. Ramón Jiménez Carbo, Attorney General of the State, as
indicated in his appointment and certificate of office, which are attached
as qualifying documents;
Mr. Manuel Inocencio Lalvay Guamán, on his own behalf, as appears
from the copy of citizenship document number 170780779-6, which belongs to
Mr. Manuel Inocencio Lalvay Guamán; a copy of that document is also
attached as a qualifying document.
STATE RESPONSIBILITY AND ACCEPTANCE
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mr. Manuel Inocencio Lalvay Guamán enshrined
in Articles 5 and 7 of the American Convention on Human Rights and other
international instruments, considering that Mr. Manuel Inocencio Lalvay
Guamán was illegally detained, tortured, and persecuted, and that the
violations were committed by State agents, which could not be disproved by
the State, giving rise to State responsibility.
the above, the Ecuadorian State accepts the facts in case No. 11.466
before the Inter-American Commission on Human Rights and undertakes the
necessary reparative steps to compensate the victims, or their successors,
for the damages caused by those violations.
view of the foregoing, the Ecuadorian State, through the Attorney General,
as the sole judicial representative of the Ecuadorian State, pursuant to
Article 215 of the Constitution of Ecuador, enacted in Official Register
No. 1 and in force since August 11, 1998, is awarding Mr. Manuel Inocencio
Lalvay a one-time compensatory payment in the amount of twenty-five
thousand US dollars (US$ 25,000) or the equivalent in local currency,
calculated at the exchange rate in effect at the time the payment is made,
to be paid from the National Budget.
compensation covers the consequential damages, loss of income, and moral
damages suffered by Mr. Manuel Inocencio Lalvay Guamán, as well as any
other claims that Manuel Inocencio Lalvay Guamán or his family members
may have, regarding the subject of this agreement, under domestic and
international law, and is chargeable to the National Budget. To this end,
the Office of the Attorney General will notify the Ministry of Finance,
for it to carry out this obligation within 90 days of the signing of this
PUNISHMENT OF THE PERSONS RESPONSIBLE
Ecuadorian State pledges to bring civil and criminal proceedings and
pursue administrative sanctions against those persons who are alleged to
have participated in the violation in the performance of State functions
or under the color of public authority.
Office of the Attorney General pledges to encourage the State Attorney
General, the competent judicial organs, and public agencies or private
institutions to contribute legal evidence to determine the liability of
those persons. If admissible, the prosecution will be subject to the
constitution and laws of the Ecuadorian State.
RIGHT TO SEEK INDEMNITY
Ecuadorian State reserves the right to seek indemnity, pursuant to Article
22 of the Constitution of the Republic of Ecuador, from those persons
found responsible for human rights violations through a final and firm
judgment handed down by the country’s courts or when administrative
liability is found, in keeping with Article 8 of the American Convention
on Human Rights.
TAX EXEMPTION AND DELAY IN COMPLIANCE
payment made by the Ecuadorian State to the other party to this agreement
is not subject to any current or future taxes, except for the 1% tax on
the event that the State is delinquent for over three months from the date
the agreement is signed, it must pay interest on the amount owed,
corresponding to the current bank rate of the three largest banks in
Ecuador for the duration of its delinquency.
Ecuadorian State, through the Office of the Attorney General, agrees to
report every three months to the Inter-American Commission on Human Rights
on compliance with the obligations assumed by the State in this friendly
keeping with its consistent practice and obligations under the American
Convention, the Inter-American Commission on Human Rights will oversee
compliance with this agreement.
compensatory damages that the Ecuadorian State is awarding to Mr. Manuel
Inocencio Lalvay Guamán are provided for in Articles 22 and 24 of the
Constitution of the Republic of Ecuador, for violation of the
Constitution, other national laws, and the norms in the American
Convention on Human Rights and other international human rights
friendly settlement is entered into based on respect for the human rights
enshrined in the American Convention on Human Rights and other
international human rights instruments and on the policy of the Government
of Ecuador to respect and protect human rights.
NOTIFICATION AND CONFIRMATION
Manuel Inocencio Lalvay Guamán specifically authorizes the Attorney
General to notify the Inter-American Commission on Human Rights of this
Friendly Settlement Agreement, so that the Commission may confirm and
ratify it in its entirety.
parties to this agreement freely and voluntarily express their conformity
with and their acceptance of the content of the preceding clauses and
state for the record that they hereby end the dispute before the
Inter-American Commission on Human Rights on the international
responsibility of the State for violating the rights of Mr. Manuel
Inocencio Lalvay Guamán.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the settlement agreement transcribed
above is compatible with the provisions of Article 48(1)(f) of the
On September 27, 1999, CEDHU informed the Commission that on that
day, seven months after the signing of the agreement by the petitioner and
the State, the State proceeded to make payment of the compensation agreed
upon. As regards punishing
the persons responsible, in 1993 proceedings were initiated, for the crime
of torture against José Alvarado and others, at the Second Court of the
First Police District (Segundo Juzgado).
On June 30, 1997, the judge issued a reasoned order, which was
affirmed by the First District Police Court on October 27, 1997. The accused appealed that order to the Corte Distrital
Policial, which in its ruling of October 27, 1997, affirmed the order
of the lower court, remanding the proceedings to the Juzgado for
the case to continue.
Despite the court’s order requesting the General Command of the
Police to indicate a day and time for its members to meet and hand down a
judgment, the Command never indicated the date of the hearing, thus the
court that should have sat in judgment of this crime never met.
For this reason, on April 28, 1999, the Second Judge of the First
District ruled that the action had prescribed; this decision was affirmed
by the District Court of the Police on June 23, 1999.
The accused continue on active duty in the Police.
The Commission reiterates its recognition of the Ecuadorian State
for its decision to settle the case by adopting compensatory measures. The IACHR also reiterates its recognition of the petitioner
for accepting the terms of the agreement.
The IACHR will continue to monitor compliance with the commitment
adopted by Ecuador to bring to trial the persons considered responsible
for the facts alleged, which has not been done to date.
The IACHR ratifies that the friendly settlement procedure provided
for in the American Convention makes it possible to conclude individual
cases in a non-contentious manner, and has proven, in cases from several
countries, to offer an important vehicle for settling violations alleged,
which may be used by both parties (petitioner and the State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To recognize that the State has made payment of US$ 25,000 as
compensation, and has failed to carry out its commitment to punish the
persons responsible for the violation alleged.
To urge the State to take the measures needed for carrying out the
commitments still pending with respect to bringing to trial the persons
considered responsible for the facts alleged.
To continue to monitor and supervise compliance with each and every
point of the friendly settlement agreement, and, in this context, to
remind the State, through the Office of the Attorney General, of its
commitment to inform the IACHR, every three months, as to the performance
of the obligations assumed by the State under this friendly settlement
To make this report public and include it in its Annual Report to
the OAS General Assembly.
Done and signed
at the headquarters of the Inter-American Commission on Human Rights, in
the city of Washington, D.C., October 5, 2000. (Signed)
Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Juan Méndez, Second Vice-Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, and Peter Laurie.