REPORT Nº 15/03
JANET DELGADO ET AL.
February 20, 2003
The Inter-American Commission on Human Rights (hereinafter, “the
Commission”) received a complaint presented on March 1st,
2001 by Norma Janet Delgado Almeida, Manuel Zabulon Delgado Galárraga,
Laura María Almeida Mora de Delgado, Rodrigo Fidel Delgado Almeida,
Ramiro Antonio Delgado Almeida, Manuel Freddy Delgado Almeida, Edith
Jeaneth Delgado Almeida, Hélice Cecilia Delgado Almeida, Jaime Rolando
Delgado Almeida and Sandra Elizabeth Delgado Almeida,
(hereinafter, “the petitioners”) against the Republic of Ecuador,
(hereinafter, “the State” or “Ecuador”) alleging failure by the State to
respect the rights of persons and their personal integrity and liberty;
the absence of judicial protection; and failure to protect personal
honor and dignity, the family, and the rights to property and equal
protection before the law, because of errors in the administration of
justice as well as abuses by local authorities.
The subject matter of the petition involves diverse
administrative and judicial proceedings to determine the legitimate
owners of “Finca La Paquita”, a piece of property that belonged
to the State and that was sold or adjudged to be the property of the
occupiers as a result of the Law on Agrarian Reform.
The petitioners allege violation of Articles 5 (personal
integrity), 7 (personal liberty), 8 (fair trial), 10 (compensation), 11
(honor and dignity), 14 (right of reply), 17 (protection of the family),
21 (private property), 24 (equal protection before the law), and 25 (judicial
protection) of the American Convention on Human Rights (hereinafter,
“the American Convention”), all in breach of the obligations set forth
in Article 1(1) thereof.
The State responded by requesting that the petition be declared
inadmissible and immediately filed.
The grounds for its position were that the Commission did not
constitute a "court of appeals or fourth instance" and could not review
the decisions of national courts rendered within their jurisdictions in
accordance with due judicial guarantees unless an act in violation of
the Convention had been committed. The State also affirmed that the petition did not fulfill the
requisites for admissibility set forth in the American Convention.
In this report, the Commission analyzes the available information
in the light of the American Convention, and concludes that the
petitioners have not presented their petition within the period
stipulated in Articles 46 and 47 of the American Convention, and
consequently decides to declare the petition inadmissible.
PROCEEDINGS BEFORE THE COMMISSION
The Commission initiated processing of the petition on July 31,
2001, under the number P131/01, and transmitted the relevant portions
thereof to the Ecuadorian state, allowing 90 days for the presentation
The response of the Office of the Attorney General of the State
to petition 131/01 was sent by Ecuador on October 15, 2001 and received
by the Commission on
November 19, 2001. The
response was transmitted on November 26, 2001 to the petitioners, who
were requested to present their observations within a period of 30 days.
The Commission received the petitioners’ observations on the
State's response on December 13, 2001.
On December 19, 2001, these observations were transmitted to the
State, which was requested to send any additional information within 30
days. The State responded
by note Nº 23223, dated March 19, 2002, which was received by the
Commission on April 12, 2002.
On October 15, 2002, during its one hundred sixteenth session, the
Commission conducted a hearing of the petitioners and the State on the
admissibility of the petition.
POSITIONS OF THE PARTIES ON ADMISSIBILITY
The present petition originated from judicial and administrative
proceedings to determine ownership of “Finca La Paquita”, a
property situated in Aguas Frías, Quevedo Canton, in the province of Los
The petitioners were declared owners of the property, by
authority of the National Institute of Agrarian Reform and Settlement (Instituto
Nacional de Reforma Agraria y Colonización -IERAC) pursuant to its
purchase by Matilde Paredes Villacís de Ortiz and Francisca Matilde
Ortiz Paredes under registered deed dated March 25, 1982.
At the time of the purchase, the property had been declared
“non-attachable” by IERAC ruling on March 13, 1980.
The negotiations were conducted with Mr. Francisco Ortiz Rosero.
Upon his death, the sale was executed by his heirs.
Upon final appeal, this determination confers full rights of
ownership to the property’s legitimate titleholders, which may be
disputed only by a person holding registered title to the same property.
According to the petitioners, Mr. Rafael Valverde Delgado
encroached on and began to cultivate a portion of the La Paquita
property. This led IERAC,
on November 9, 1982, to order an appraisal of the crops and improvements
made in the area. On
December 10, 1982, the Regional Manager of IERAC ordered the payment of
fifty two thousand four hundred sucres on account of the crops
introduced by the squatters.
This amount was collected and consigned by IERAC by act R2-G-0536 of
January 26, 1983, and the squatters Rafael Valverde Delgado and the
widow Beatriz Vargas, formerly Tandazo, were ordered evicted from the
On May 19, 1986, the Regional Agrarian Reform Appeals Committee
rendered a decision upholding the ruling of non-attachability (of March
13, 1980) in favor of Mrs. Laura Almeida, ordering demarcation of the
property, which was never executed.
On October 19, 1987, one year and five months after this decision,
a group of nine armed individuals, identified as police officers,
entered the house.
According to the petitioners, the men planted a bag of three grams of
cocaine as evidence, accused the Delgado Almeida family of drug
trafficking, arrested them and placed them in the custody of the Quevedo
Provisional Detention Center.
The Delgado Almeida family was held incommunicado for four days and was
released upon the filing of a petition of
Immediately following their release, warrants were issued for their
arrest on grounds of drug trafficking, whereupon they abandoned the
province of Los Ríos. They
were subsequently tried for alleged drug trafficking, and the case was
dismissed by the criminal law judge.
They were also prosecuted for illicit possession of firearms,
attempted murder and robbery in a case brought by Mr. Valverde.
This case was also dismissed.
While these proceedings were underway, they were obliged to
abandon their house, which was occupied by Mr. Valverde and other
persons. After they left
the house, the squatters took possession of the property’s land, farm
machinery, animals, and other physical assets.
The Delgado Almeida family continued to live at “La Paquita”
from 1983, when the squatters were evicted, until October 19, 1987, when
the assault, break-in, robbery and encroachment of the property were
alleged to occur.
Mr. Valverde, in a further effort to gain access to Mrs.
Almeida’s property, requested that IERAC award him a strip of the
property’s land which he considered to be his.
It should be noted that the portion of the property claimed by
Valverde had been included in the definitive ruling of non-attachability
issued by IERAC, which supposedly was not subject to modification.
By a decision on February 24, 1988, IERAC awarded the
aforementioned strip of land within the La Paquita property to
Mr. Rafael Valverde. As a
result of this decision, Mrs. Almeida’s property was divided by half.
Subsequently, the widow Beatriz Vargas, formerly Tandazo, lodged
a request for revocation of the judgment issued by the IERAC Regional
Committee declaring the non-attachability of the property owned by the
Almeida family. This
request was denied and filed, on the grounds that Mrs. Almeida held
title to the property. Mrs.
Vargas lodged another request for revocation, this time with success:
the ruling (supposedly definitive and not subject to appeal) was revoked
by the Regional Manager of IERAC by a decision on
October 30, 1990.
Mrs. Almeida appealed that decision, which on June 11, 1993 was in turn
revoked, upholding the initial ruling of non-attachability (of May 19,
1986) in favor of Laura Almeida.
At this point, the petitioner requested that IERAC execute the ruling of
non-attachability and evict the persons occupying the property “La
Paquita”. Eviction of the squatters (Patricio Pazmiño and all other
persons without business on the property) was ordered by IERAC on July
30, 1995. On October 4, 1995, before the eviction order was executed,
the Executive Director of the Agrarian Development Institute (Instituto
de Desarrollo Agrario -INDA) (formerly IERAC) ordered a new visual
inspection and suspension of the eviction order.
On June 30, 1995, when the Executive Director of INDA ordered the
eviction of the squatters, one-third of the property had been occupied
by Patricio Pazmiño Álvarez, who claimed to have acquired the property
from Mrs. Vargas and presented the deed.
On the basis of these documents, the Executive Director of INDA
suspended the eviction order by a decision on October 4, 1995.
The petitioners requested that the decision suspending the
eviction order be declared null and void by the
Contentious-Administrative Tribunal. This request was denied on grounds that suspension was
considered a merely procedural act and not an obstacle to the imperative
mandate of a ruling of non-attachability, as affirmed by the petitioners.
Once again, on April 30, 1997, the Executive Director of INDA
issued an administrative ruling guaranteeing the integrity of the
property and thus ratifying the eviction order issued on June 30, 1995.
On July 24, 1997, Mrs. Laura Almeida Delgado, joined by several
family members and about 20 employees, citing the letter of April 30,
1997 from the Executive Director of INDA to the Governor of Los Rios,
and with the assistance of the police, proceeded to forcibly take
possession of the property and evict the squatters.
On July 29, 1997, after the eviction order had been issued and
executed, the Executive Director of INDA suspended it.
On August 26, 1997, since the eviction orders were not being
executed, Mrs. Laura Almeida lodged a request for the protection of her
rights (amparo) in respect of
the decision of the Director of the Instituto de Desarrollo Agrario,
seeking guarantees for the legitimate right of ownership, and protection
of the property and integrity of the property's owners.
The case was assigned to the Second Civil Chamber Judge, who
denied the request on December 2, 1997 as contrary to law.
This decision was appealed before the Constitutional Court.
On August 28, 1997, the squatters Rafael Valverde and Patricio
Pazmiño lodged a request for forcible eviction before the Civil Chamber
Judge of los Ríos. On
October 22, 1997 they obtained a ruling ordering the eviction of Laura
Almeida Delgado and family, on the grounds that she and a group of
workers had dispossessed Rafael Valverde and Patricio Pazmiño of their
property. The eviction
order was executed on October 28, 1997.
The squatters took the opportunity offered by the suspension of
the eviction order to forcibly reoccupy the property on October 28,
1997, and have remained there to the present day.
On January 6, 1998, the Third Chamber of the Constitutional Court
granted the constitutional protection (amparo)
requested by Laura Almeida de Delgado for the petitioner’s right to
property and ordered the execution of the ruling of non-attachability.
On June 2, 1998, the Executive Director of INDA requested that
the Governor of Los Ríos take the appropriate legal steps to evict the
squatters pursuant to the decision of the Third Chamber of the
On June 16, 1998, to avoid enforcement of the decision rendered
by the Third Chamber of the Constitutional Court, Mr. Patricio Pazmiño
filed a suit before the Tenth Court for Civil Matters in and for Los
Rios for constitutional protection against the measures of June 2, 1998
issued by the Executive Director of INDA.
On December 3, 1998, the Third Chamber of the Constitutional
Court granted this request for constitutional protection and suspended
its own previous ruling.
This is the decision which the petitioners are challenging and which was
adopted on January 28, 1999, which is also the date on which the
petitioners were notified.
The main objective pursued by Laura Almeida Mora de Delgado and
family is execution of the judgment of the Regional Agrarian Reform
Appeals Committee Nº 2, upheld by the January 6, 1998 decision of the
Third Chamber of the Constitutional Court.
On November 15, 2001, by note Nº 4-2-268/01, containing the
official communication Nº 20248 from the Office of the Attorney General
of the State, the Government of Ecuador responded to the Commission by
requesting that the petition of Janet Delgado be declared inadmissible
The Ecuadorian state argues that the Commission is not a court of
appeals, and, therefore, cannot review the decisions of national courts
acting within their spheres of competence, subject to the appropriate
judicial guarantees, unless an act violating the Convention has been
committed. Nor, the State
affirms, can the Commission examine alleged errors of law or fact that
may have been committed by national courts operating within the limits
of their jurisdiction.
The State also affirms that Mrs. Delgado has presented her
petition to the Commission extemporaneously, since the final, definitive
decision in the matter was rendered on December 3, 1998, whereas the
petition was presented on July 31, 2001 -31 months later.
This delay, the State argues, should not be tolerated, because
doing so would be contrary to justice, juridical security, and the
The judgment issued by the Third Chamber of the Constitutional
Court on December 3, 1998 presents a different view of the facts from
those presented by the petitioners.
Specifically, the Constitutional Court notes that:
Shortly after the new Law of Agricultural Development
was enacted and INDA was created, Almeida deceived the Director of INDA,
who at that time was the attorney Angel Sereni, by again alleging an
encroachment that never took place.
Sereni issued an eviction order dated June 30, 1995.
This order was fortunately not executed, because the occupants of
the property learned about it by chance and contacted the Director.
Realizing the deception, Sereni suspended the order by a decision
on October 4, 1995, a copy of which we attach and which also is part of
the case file, ordering an inspection which led to the conclusion that
the property is in the hands of a proprietor, Dr. Rafael Valverde, and
five occupants, and that no encroachment ever took place.
In its brief of October 15, 2002, the State affirms that
“According to the information initially presented by the plaintiff, the
State’s international responsibility should be declared, given its
failure to comply with the judgments of domestic courts, allegedly in
violation of Article 21 of the Convention.
The plaintiff affirms that these judgments contain ‘legal flaws
that infringe on our rights’, in that the decision of the Constitutional
Court on January 28, 1999 was ‘clearly unjust, improperly applied, and
based on erroneous interpretations of the law, procedural provisions,
and applicable legal principles … which irreversibly render the
aforementioned decision null and void’.
The aim is for the Commission to review the decision and
determine a posteriori whether
there is another decision more favorable to the plaintiff, assuring her
of her rights to the property concerned.
The Ecuadorian state considers that by virtue of the ‘fourth
instance’ argument, the Commission cannot review the decisions of
national courts acting within their spheres of competence, subject to
the appropriate judicial guarantees, unless an act violating the
Convention has been committed.”
The Commission’s jurisdiction ratione personae, racione
loci, and ratione temporis
The petitioners have the right, under Article 44 of the American
Convention, to present petitions to the Commission.
The petition identifies as alleged victims Mrs. Janet Delgado and
other persons in a sense consistent with Article 1(2) of the American
Convention. The State
implicated in the petition, the Republic of Ecuador, ratified the
American Convention on December 28, 1977.
The Commission therefore has jurisdiction ratione personae to examine the petition.
In terms of jurisdiction
ratione loci, all of the alleged violations were committed within
the jurisdiction of the Republic of Ecuador.
In terms of jurisdiction
ratione temporis, the alleged violations were committed subsequent
the country’s ratification of the American Convention, which occurred on
December 28, 1977.
In terms of jurisdiction
ratione materiae, the violations described, if true, could
constitute violations of Articles 8 and 21 of the American Convention.
In light of the fact that the petitioners reiterate in their
presentations to the Commission that the central issue in this case is
the violation of their right to private property, and the alleged
violations of due process that have deprived them of their property
since 1987, the Commission considers these two alleged violations as the
subject matter of this case.
Other requisites for admissibility
Exhaustion of domestic remedies
Article 46 of the American Convention provides that the admission
of a case is subject to the requirement “that the remedies under
domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law”.
This requirement guarantees the opportunity of the State to
resolve differences within its own legal system.
According to the petitioners, the State first argued that all
domestic remedies had been exhausted and legally resolved, and then
later, that there are domestic remedies that have not been exhausted.
It is clear to the Commission that the State was arguing that
domestic remedies had not been exhausted in respect of violations of
rights to personal liberty and physical integrity.
But as for the exhaustion of domestic remedies in respect of the
petitioners’ right to property, we believe that domestic means of
redress have been exhausted, the final judgment of the Third Chamber of
the Constitutional Court having been rendered on December 3, 1998.
Period for presentation of the petition
Article 46(1)(b) of the American Convention provides that:
Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements:
that the petition or communication is lodged within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment;
We consider that the petitioners failed to comply with the 6
month period established in the Convention, having presented their
petition in March 2001. The
final decision, bringing the proceedings to an end, was Decision Nº 06
3-III-SALA, of December 3, 1998, which was rendered by the Third Chamber
of the Constitutional Court.
The petitioners were notified of the decision on January 28, 1999.
From the time of the definitive ruling of Ecuadorian justice to
the time that the petition was presented to the IACHR, 27 months elapsed,
which represents a failure to comply with the formal requirements
contained in Article 46 of the Convention.
Based on the arguments of fact and law set forth above, the
Commission considers that the petition is inadmissible pursuant to the
requisites established in Article 47(a) of the American Convention on
Human Rights, inasmuch as it does not comply with the time period
established in Article 46(1)(b).
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present petition inadmissible on the grounds that
it does not refer to the violation of human rights protected by the
To notify the parties of this decision.
To publish this decision and include it in its Annual Report to
the General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., on the 20th
day of the month of February in the year 2003.
Signed: Juan Méndez,
President; Marta Altolaguirre, First Vice-President; José Zalaquett,
Second Vice-President; and Robert K. Goldman and Clare K. Roberts,
Dr. Julio Prado Vallejo, of Ecuadorian nationality, did not take
part in the discussion of this case in accordance with Article
17(2)(a) of the Commission’s Rules of Procedure.
 The widow Beatriz Vargas, formerly Tandazo, died on 7
Patricio Pazmiño Álvarez grounds his claim in the subrogation
of Beatriz Vargas’s alleged rights of possession.
 Judgment of 3 December 1998 of the Constitutional
Court, Third Chamber.