On February 18, 1997, the Comisión Ecuménica de Derechos
Humanos (hereafter “CEDHU” or “the petitioner”) presented 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 it alleged violations of the
following rights protected by the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”):
the right to personal liberty (Article 7), the right to a fair
trial (Article 8), and the right to judicial protection (Article 25), all
in breach of the obligations set forth at Article 1(1), to the detriment
of Mr. José Patricio Reascos.
The parties arrived at a friendly settlement agreement in this case
on June 11, 1999. This report
contains a brief description of the facts and the text of that agreement,
in keeping with Article 49 of the Convention.
3. At 8:00 a.m. of
September 12, 1993, Mr. Reascos, who was inebriated, was detained in the
San Roque sector of the city of Quito by members of the Office of Criminal
Investigation. When he was searched, a packet of marijuana was found that
the petitioner had acquired for personal consumption.
Mr. Reascos was taken to the offices of Interpol and later
transferred to the Center for Provisional Detention.
The Third Criminal Court of Pachinko heard the case, and on October
16, 1993, instituted criminal proceedings and, considering that the
requirements of Article 177 of the Code of Criminal Procedure were satisfied, ordered that Mr. Reascos be held
in pre-trial detention.
The petitioner stated that at the moment the complaint was
submitted to the IACHR on February 18, 1997, and despite the constant
requests for a speedy trial, this had not happened, as more than three
years had elapsed without a formal indictment.
The petitioner reported that under Article 65 of the Law on
Narcotic and Psycho tropic Substances of Ecuador, drug consumption should
be sanctioned by a maximum of two years in prison, even if one is given
the maximum penalty provided by law.
At the time the complaint was received at the IACHR, Mr. Reascos had
already served more time than the maximum penalty that could have been
imposed on him. Accordingly,
on November 4, 1996, he filed a writ of amparo
with the President of the Superior Court of Justice of Quito, which was
dismissed on November 6, 1996.
The petitioner declared that the investigation in the case, which
according to Article 231 of the Code of Criminal Procedure should not last
more than 60 days, was drawn out over three years.
On June 4, 1997, the Third Criminal Court of Pachinko sentenced Mr.
Reascos to 16 months of correctional prison for the crime of drug
consumption, and ruled that the verdict should be consulted with the
superior court. At the time
of this verdict, Mr. Reascos had been detained for three years and nine
months. On September 16, 1997, the Superior Court affirmed the verdict of
the court below, and so Mr. Reascos was released September 20, 1997,
having been imprisoned for a total of four years.
Accordingly, his right to be tried within a reasonable time was
violated, and likewise his right to be presumed innocent until proven
PROCESSING BEFORE THE COMMISSION
On March 3, 1997, the Commission received the complaint, originally
sent on February 18, 1997. On
July 28, 1997, it began the processing of this case and asked the
Government of Ecuador to provide relevant information within 90 days.
On September 24, 1997, the petitioner sent additional information.
On September 30, 1997, Ecuador submitted its response to the IACHR
with reports prepared by the National Police and the Superior Court of
Quito. On December 8, 1998,
the IACHR made itself available to the petitioner and the State to pursue
a friendly settlement. On
January 8, 1999, and February 1, 1999, respectively, the State and
petitioner accepted. The friendly settlement agreement was signed in the
presence of Carlos Ayala Corao, at the time a member of the IACHR and
rapporteur for Ecuador, who traveled to Quito to facilitate the agreement.
The parties asked the Commission to ratify this agreement in its
entirety and to supervise its implementation.
THE FRIENDLY SETTLEMENT AGREEMENT
The friendly settlement agreement signed by the parties states 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. José Patricio Reascos, acting on
his own behalf, 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;
Sister Elsie Hope Monge Yoder, on behalf of and in representation
of Mr. José Patricio Reascos, as appears in the special power-of-attorney
executed before the 33rd Notary of Quito, Mr. Nelson Prado; 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. José Patricio Reascos enshrined in
Article 7 (personal liberty), Article 8 (a fair trial), and Article 25
(judicial protection), and the general obligation set forth in Article
1(1) of the American Convention on Human Rights and other international
instruments, since 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 11.779
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. José Patricio
Reascos, a one-time compensatory payment of twenty thousand US dollars
(US$ 20,000), 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. José Patricio Reascos, and any other claim that
Mr. José Patricio Reascos or his next-of-kin 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 document.
PUNISHMENT OF THE PERSONS RESPONSIBLE
Ecuadorian State pledges to bring civil and criminal proceedings against
and shall seek the punishment of 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
settlement agreement. In
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. José
Patricio Reascos 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 standards 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
José Patricio Reascos expressly 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
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. José Patricio
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the settlement agreement transcribed
above is compatible with the terms of Article 48(1)(f) of the American
CEDHU informed that Commission that “on June 11  an
agreement was signed by which the State undertakes to punish the persons
responsible for the violations alleged and to pay fair compensation within
three months ... and on May 30, 2000, it proceeded to pay the victim the
amount corresponding to compensation, yet did not pay the interest, also
provided for in the agreement.” On
February 27, 2001, during an informal meeting, the State informed the
Commission that the criminal proceedings have been initiated to determine
the responsibility and punishment of the persons implicated in the alleged
The Commission reiterates its recognition of the Ecuadorian State
for its decision to resolve this case by adopting measures of reparation,
including those necessary to punish the persons responsible for the
violations alleged. 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
assumed by Ecuador with regard to the trial of the persons presumed
responsible for the facts alleged, and payment of the interest for
The IACHR ratifies that the possibility of friendly settlement
provided for in the American Convention makes it possible to conclude the
individual cases in a non-contentious manner, and has proven, in cases
from several countries, to offer an important vehicle for solving alleged
violations that can be used by both parties (petitioner and State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To acknowledge that the State has made payment of US$ 20,000 as
compensation, and the beginning of judicial proceedings to punish the
persons implicated in the facts alleged.
To urge the State to adopt the measures needed to comply with the
commitments pending with respect to the trial of the persons presumed to
be responsible for the facts alleged.
To continue to monitor and supervise the implementation of 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 of compliance with 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., February 20, 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chairman; Commissioners Hélio Bicudo, Robert K. Goldman, and Peter Laurie.
Commissioner Julio Prado Vallejo, of Ecuadorian nationality, did not
participate in the discussion of this case, in keeping with Article 19
of the Commission’s Regulations.
Article 177 of the Code of Criminal Procedure stipulates:
Judge may order pre-trial detention when he or she deems it necessary,
so long as the following procedural data appear:
Indicia that trigger a presumption of the existence of an
offense that merits deprivation of liberty; and,
Indicia that trigger a presumption that the accused is the
perpetrator of or accomplice to the offense that is the subject of the
record shall indicate the indicia that are the grounds for the
Article 65 of the Law on Narcotic and Psychotropic Substances
penalties for possession for personal use: the punishment shall be one
month to two years in prison when, in view of the small amount and all
other circumstances, the possession of substances subject to control,
one can deduce that they are for the immediate personal use of the
this case, having confirmed his or her physical or psychological
dependency on narcotic or Psycho tropic substances, after a report by
the forensic experts at the Office of the Attorney General, the judge
may suspend the application of the penalty and submit the guilty
person to curative security measures for the time needed for his or
her detoxification and rehabilitation.
This article was repealed on June 9, 1998.