REPORT Nº 10/95

CASE 10.580

ECUADOR

September 12, 1995

      I.        BACKGROUND

      1.   The Inter-American Commission on Human Rights received a communication on August 29, 1988, alleging that:

           On October 14, 1985, Marines entered the house of Elena Ortíz in the neighborhood of Isla Piedad Esmeraldas, where some young men were playing cards (at approximately 4:00 a.m.).  Under the pretext of reviewing their identification documents, the Marines detained the following persons: Manuel Stalin Bolaños Quiñonez, William España Ordoñez, Miguel Mosquera Betancur, Bonifacio Angulo Ordoñez.  The last three of those named were freed the following day.  They said that the Marines had taken them to Balao (Port) in Esmeraldas, and there they were divided.  Manuel was taken to another part, and from that moment they have had no further news of him.  The family members of Manuel Bolaños tried to interpose writs of habeas corpus, but these were rejected.

On July 13, 1990, the Commission initiated the processing of this case, requesting that the Government of Ecuador provide information relative to the material facts of the denunciation within 90 days. 

      2.      According to information submitted to the Commission by the petitioners in August of 1988 and June of 1990, family members and others had begun requesting information on the whereabouts of Manuel Bolaños in the late afternoon of the day he was detained.  They approached authorities of the Navy and the naval base at Balao, the Balao Port Authority, the Minister of Interior and the Minister of Defense.  A telegram requesting an investigation of the disappearance of Manuel Bolaños was sent on November 19, 1985 to the Ministers of Interior and Defense, and to the Chiefs of the Criminal Investigation Service and Police Security.  Another telegram dated November 6, 1986 was directed to the Ministers of Interior and Defense.  Petitions for habeas corpus were presented before the Mayor of Esmeraldas, and petitions were filed with the Special Commission on Human Rights of the National Congress on January 6, 1987, and the Court of Constitutional Guarantees on April 21, 1988.  The petitions for habeas corpus were denied.  One such habeas corpus petition, filed by Mr. Bolaños' mother on January 8, 1986, had not been processed as of January 6, 1987.  All of these measures had been unsuccessful in obtaining information.  In 1987 and 1988 individual petitioners had unsuccessfully petitioned the Judge of the Third Naval Zone for permission to review the case file and any judgments issued in this matter.

      3.   On September 24, 1990, the Commission received additional information from the petitioners, which may be summarized as follows:

           a.     At the time of his detention, Manuel Bolaños was 22 years old, single, and a bricklayer by profession.  Petitioners allege that he was illegally detained by Marines--members of a special investigation group--and held on Isabel Island, Esmeraldas.  They further allege that he was tortured, and died "from the effects of interrogation" while held in custody by state agents on October 14, 1985.  The petitioners state that they first learned on June 9, 1987 that Mr. Bolaños was dead.  The petitioners had contacted the United Nations Human Rights Commission about the disappearance of Manuel Bolaños, and on that date the Human Rights Commission transmitted the response received from the Government.  As stated therein, Mr. Bolaños had died, and an investigation into the circumstances and possible responsibility had been initiated on October 29, 1985.

           b.     Petitioners set forth that Mr. Bolaños had been detained in connection with an investigation into the October 12, 1985 assassination of Lieutenant Arturo Sotomayor at the naval base at Balao.  The investigation was carried out by Naval Intelligence agents, and two police criminologists.  The petitioners base these contentions on what they describe as the October 19, 1987 declaration given by Naval Station Commander Gracian Villota before the Military Criminal Court of the Third Naval Zone.  (Petitioners quote the declaration, but did not provide a copy.)  Mr. Velez Carriel, a suspect in that case detained at Balao, had at 11:00 p.m. on October 15 admitted his participation, and had inculpated others including Mr. Bolaños.  An operation was mounted at 1:00 a.m. on October 16 to capture those inculpated.  These assertions are based on the October 19 declaration noted above, and communication ESTESM-GVM-001-S, discussed below.  Petitioners quote Commander Villota's October 19, 1987 statement as indicating that he followed the group carrying out the manoeuver in a separate jeep, accompanied by Officer Carlos Romero and a police official from Quito.  Petitioners report that in what they describe as official communication number ESTESM-GVM-001-S, of October 20, 1985, Commander Villota had written to the Commander of the Third Naval Zone that Manuel Bolaños, also known as "Pedrito," had been detained on October 16, 1985 at 4:00 a.m., pursuant to having been accused of participation in the assassination of Officer Sotomayor.  After having been identified by Mr. Velez, Mr. Bolaños was interrogated by Officer Morales and intelligence agents.  (Petitioners quote the communication, but did not provide a copy.)

           c.     Also referred to, although not produced, is a declaration given by Naval Commander Hugo Unda Aguirre on December 21, 1988 [which notes that he assumed his post as of November 7, 1985 - almost one month after the assassination of Officer Sotomayor] in which he refers to an emergency operation carried out in Esmeraldas in response to the Sotomayor homicide.  Special security measures were taken, based on the perception that the area harbored revolutionary activity and armed persons, and that such persons had carried out the homicide.  Petitioners quote the declaration as describing the strong sense of camaraderie existing among those in the Navy, and the consequent need felt by all to rigorously investigate the Sotomayor homicide in order to protect "the honor of the institution."  Petitioners report that in the declaration Commander Unda Aguirre acknowledges that the foregoing factors contributed to "a small" exaggeration relative to security.  He notes, however, that corresponding legal processes had been initiated to correct the exaggerations, and that there "exists a military justice to deal with any type of exaggerations" that could be committed by the lower echelon officers. 

           d.     Petitioners note from the October 19, 1987 declaration of Commander Villota, that between approximately 4:15 a.m. and 4:30 a.m. on October 16, 1985 he passed by the second platform on the base (an administrative area), and noticed three detainees lying face down, with their hands tied behind their backs, in a pool of water that had formed from the intense rain falling at the time.  Afraid they would drown, he ordered that their positions be changed.

           e.     Petitioners state that in official communication ESTESM-GVM-001-S, Commander Villota wrote that according to reports received, Mr. Bolaños died from the "effects of the interrogation," and that the agents who had been conducting the interrogation had immediately buried his body.  Petitioners cite the October 19, 1987 statement of Commander Villota as setting forth the recollection that he was informed of the death at 11:00 a.m. on October 16 by Commander Assan, who had received the information from Officer Morales at 6:30 a.m.  The statement records that Commander Villota then telephoned the base at Balao, but Officer Morales was no longer there, having left for Quito.  When Commander Villota inquired about the whereabouts of the body, he was told that it had been buried.  Commander Villota questioned Commander Assan on this point, and was told that those involved had said "I don't know," or "I don't remember because I don't know the forest."  Petitioners quote from but did not provide the October 19, 1987 statement of Commander Villota.

           f.     The petitioners report that a military criminal process was initiated to investigate the circumstances of the death of Mr. Bolaños.  Petitioners contend that in the order initiating the process, the Military Criminal Judge of the Third Naval Zone had set forth that according to his information, Mr. Bolaños had been captured on October 15, 1985 in relation to the accusation of Mr. Velez Carriel.  His death occurred as members of Naval Intelligence were arranging to interrogate him.  The reason for his death was unknown.  Among other measures, the Judge ordered that an autopsy be carried out.  In support of these contentions petitioners quote from, but did not provide, the order opening the criminal process.

           g.     After Commander Villota learned of the death and burial, petitioners allege that he consulted others on how to handle the situation.  Petitioners assert that communication ESTESM-GVM-001-S records that, given the "difficult and compromising situation," Commander Villota had consulted Political Chief Ricardo Gutiérrez, who had counseled that it would be best to leave the body where it was--to disappear the body and maintain absolute silence about the matter.  (Petitioners quote from but did not provide this communication.) 

           h.     Petitioners contend that Mr. Gutiérrez advised that given the situation, with the population upset by the "series of raids and illegal detentions" carried out since the assassination of Sotomayor, it would be best to leave the body where it was.  Mr. Gutiérrez reportedly reasoned that: handling the situation otherwise risked bringing the facts to light; an autopsy would reveal the real cause of death; and any maneuver that was done later would be easily identifiable and therefore very compromising.  In support of these allegations petitioners cite but did not provide the October 19, 1987 statement by Commander Villota.  Petitioners argue that the advice of the Political Chief to keep the body hidden because an autopsy would establish the real cause of death is pertinent in leading to the conclusion that Mr. Bolaños died from the effects of torture.  Petitioners further contend that his participation demonstrates the disposition of the authorities to obscure the true facts and to effectively grant impunity to those involved.

           i.     Petitioners report that Dr. Romero Herrera was instructed to obtain a false autopsy report, which he did by means of bribery.  They allege that the sum of $200,000 (sucres) was paid for the false report, and that Esmeraldas Police Commissioner Perlaza signed the false report.  In support of these allegations petitioners quote but did not provide the October 19, 1987 statement of Commander Villota.

           j.     Petitioners contend that Commander Gracian Villota made at least four official statements about the facts concerning the apprehension, detention and death of Manuel Bolaños, three of which had been directed by Third Naval Zone Judge Romero Herrera.  They allege that he was ordered to change the first report, and was then ordered to destroy it, and others he had made.  In one instance, petitioners assert that the Commander was ordered to switch a report with one that had been made up by Officer Pimentel.  It was the fabricated report, petitioners quote the Commander as saying, that was used to initiate the criminal process.  The petitioners contentions are based on text they quote as part of the October 19, 1987 statement of Commander Villota.

           k.     Petitioners recall from the above information that there were two police criminologists who participated in the Sotomayor investigation.  The October 19, 1987 statement of Commander Villota is cited as recording that these two agents were integrated into the special investigation team.  Petitioners assert that these two police agents were involved in the interrogation of Mr. Bolaños and would have possessed information with respect to the circumstances of his death.  However, in response to an inquiry from the Court of Constitutional Guarantees, the Minister of Interior stated that the police had not intervened in the case concerning Mr. Bolaños, and therefore could provide no information.  In support of this allegation petitioners quote but did not provide the April 10, 1986 response of the Interior Ministry to the Court of Constitutional Guarantees.

           l.     Petitioners note the participation of Dr. Carlos Romero Herrera in various aspects of this matter.  He acted as judge in initiating the criminal process opened following Mr. Bolaños' death.  In the order initiating the process, petitioners report that Dr. Romero required that an autopsy be carried out.  Notwithstanding this order, petitioners allege that no autopsy was ever carried out, and that Dr. Romero instead procured a false autopsy report.  The petitioners assert that, when the Court of Constitutional Guarantees required information about this case in 1988, Dr. Romero appeared before it as Defense Counsel for the General Command of the Navy.

           m.     The petitioners also cite instances of conflicting information respecting the death of Manuel Bolaños and the pursuant investigation.  Petitioners cite, but did not provide, the text of a letter from the Minister of Defense, General Luis Piñeiros to the General Commander of the Navy, Admiral Hugo Unda Aguirre, of February 7, 1986, requesting clarification concerning contradictions between reports he had received from the Admiral and from the Commander of the Third Naval Zone.  The Minister of Defense alludes to the former report as having recounted that "as to the disappearance of said citizen [Mr. Bolaños] a criminal process is being carried out to establish responsibility," and "to know his whereabouts."  The Minister described the latter report as having detailed criminal matters initiated in the naval zone, including reference to a cause "concerning the death of" this citizen. 

           n.     Mr. Bolaños' mother went to the naval base on the afternoon of October 16, 1985, asking for her son.  She was told that they did not know who she was asking about, and was requested to return the following day with photographs.  The petitioners assert that this is recorded in Commander Villota's October 19, 1987 declaration, which reports that when the woman returned the next day, the Commander deduced that she was looking for the detainee known as "Pedrito," that is, for Manuel Bolaños.  The family was led to believe that Mr. Bolaños just disappeared. 

           o.     Petitioners believe the matter to have been under the jurisdiction of the Military Criminal Court of the Third Naval Zone.  Although years have passed since the date of Mr. Bolaños' death, they have been unable to ascertain the status of the process.  The petitioners contend that while Article 63 of the Code of Military Procedure provides that the preliminary stage of the criminal process should last 10 days, proceedings had continued at least through the October 19, 1987 declaration of Commander Villota taken more than two years after Mr. Bolaños' death.

           p.     The petitioners further contend that the illegal detention, torture, and resulting death that they allege occurred in the case of Manuel Bolaños are consistent with other abuses committed by investigation authorities.  Petitioners note that in the proceedings of the Multiparty Commission of the National Congress charged with investigating the disappearance of Consuelo Benavides there is a reference to excesses committed by officials within the investigation concerning the assassination of Arturo Sotomayor. 

The pertinent parts of this information were transmitted to the Government of Ecuador on November 28, 1990, with a request that it provide all information relevant to the case within 30 days.

      4.   By means of a note of December 4, 1990, the Government of Ecuador acknowledged receipt of the Commission's July 13, 1990 transmission of the pertinent parts of the case.  The Government informed the Commission that the judicial process initiated to investigate the detention and later events relative to Mr. Bolaños had been closed in 1989.  The Government also noted that the matter concerning Mr. Bolaños was currently before the Human Rights Commission of the United Nations.

      5.   The pertinent portion of the Government's response was communicated to the petitioners by the Commission in a note dated January 15, 1991.

      6.   By a note of the same date, the Commission acknowledged receipt of the Government's response, and informed the Government that a pending examination of the matter by a human rights body mandated to examine general situations concerning human rights would not bar its consideration by the present body.

      7.   In response to the January 15, 1991 request of the Commission for information, on January 29, 1991, the Government of Ecuador remitted to the Commission a copy of the sentences issued in the judicial process initiated in relation to Manuel Bolaños.  The military criminal process had been initiated at the order of the Military Criminal Judge of the Third Naval Zone.  The first disposition transmitted was issued by the Law Court of the Third Naval Zone on January 27, 1989.  The contents of the sentence may be summarized as follows: 

           a.     Mr. Bolaños, also known as "Pedrito," was captured on October 16, 1985 at 4:00 a.m.  He had been accused by Mr. Vélez Carriel of having participated in the assassination of Arturo Sotomayor Bustamante.  Mr. Bolaños died of unknown causes while members of the Intelligence Service were arranging to interrogate him.

           b.     The summary stage of the process had been concluded, and the Public Prosecutor of the Zone and the Military Attorney General had issued their respective opinions.  Both recommended that the cause be dismissed because there was no basis for a charge or finding of personal responsibility in the matter.

           c.     The testimony of ten persons is cited, in which it is consistently recorded that pursuant to the Sotomayor homicide, an operation was mounted to capture those responsible.  Some persons were detained, but were freed once it had been shown that they had not participated in the crime.  One of the detainees died at approximately 7:00 a.m. on October 16, 1985 of causes described in documents in the investigation file.  Principally, the autopsy protocol indicates that he died due to alcohol intoxication.  The investigation file contains the out-of-court declarations given before the Naval Intelligence Service by the citizens detained in that operation, from which it may be ascertained that "none of them had been physically or psychologically coerced so that they would voluntarily express the reason for their detention."  

           d.     For the foregoing reasons, and in accordance with the opinions issued by the Public Attorney and the Military Attorney General, it was ordered by the Court that the process be dismissed.

      8.   The Government also transmitted a copy of the May 10, 1989 order issued by the Court of Military Justice in Quito confirming the dismissal of the cause by the Law Judge of the Third Naval Zone.  This disposition reviews the points set forth as the basis for the opinion of the Law Judge above, also notes that the body of Mr. Bolaños presented no signs that he had been physically mistreated, and notes that the medical experts had concluded that his death was due to alcohol intoxication.  In accordance with those points, the order of dismissal was confirmed.

      9.   The Commission transmitted a copy of the sentence to the petitioners by a note of February 8, 1991, requesting that any observations thereon be filed within 30 days.

      10. By means of a note of February 20, 1991, the petitioners informed the Commission that neither they nor the family of Mr. Bolaños had yet received official notice of the death of Mr. Bolaños, the circumstances thereof, or of the location of his remains.  They further noted that, despite numerous actions before competent authorities, they had been unable to obtain a copy of the criminal process initiated in the matter.

      11. The petitioners filed their observations with respect to the Government's January 29, 1991 transmission on March 4, 1991.  In response to the official finding that Mr. Bolaños died as a result of alcohol intoxication, they maintain that in fact he died as a consequence of the mistreatment he received while in custody.  The petitioners again refer to the October 20, 1985 communication they refer to above, in which Commander Villota states that when he arrived at the base in Balao:

      I was informed that the captured citizen (Manuel Bolaños) had died from the effects of interrogation, and that the same agents who had participated in the interrogation had proceeded to bury the body....  Given this very difficult and compromising situation, in a meeting of officials, I decided to consult with Political Chief Ricardo Gutiérrez, who counseled to disappear the body and maintain absolute silence on the matter....

      12. The petitioners again quote from the October 19, 1987 declaration of Commander Villota in which he recounts that once informed of the death, he asked about the body, and was told that it had already been buried.  Petitioners reiterate their reference to a passage later in the same declaration in which Commander Villota recalls the advice of Political Chief to leave the body where it was, as to do otherwise would risk bringing the facts to light, and because an autopsy would reveal the true cause of death.

      13. With their response, the petitioners submitted copies of several documents which they had cited extensively in prior submissions: official communication ESTESM-GVM-001-S, the October 20, 1985 report of Commander Villota to the Commander of the Third Naval Zone; the February 7, 1986 letter of the Minister of Defense to the General Commander of the Navy; the operative portion of an order by Military Criminal Judge Romero which refers to some of the measures taken to investigate the matter; and three pages of the October 19, 1987 statement of Commander Villota before the Military Criminal Judge Barriga Chiriboga.

      14. On March 21, 1991, the Commission requested that the Government of Ecuador provide a copy of the file compiled in relation to the investigation and criminal process carried out in relation to the disappearance and death of Manuel Stalin Bolaños Quinoñez.  The Commission asked that all relevant information be submitted within 30 days.

      15. By a note of July 4, 1991 the petitioners requested a thirty day extension to submit their observations on this case.  The Commission acknowledged receipt and granted this request with a note of July 17, 1991.

      16. The Commission's above request that the Government of Ecuador supply the information relevant to the case was reiterated in a note dated January 7, 1992.

      17. With a note of the same date the Commission also reminded the petitioners that although they had requested and been granted an extension to file their observations in the case, no response had been received.  They were requested to provide any response or new information within thirty days.

      18. On January 27, 1992 the Government of Ecuador wrote to the Commission to acknowledge receipt of the January 7 correspondence, to note that it had been received by the Minister of Foreign Relations on January 23, 1992, and to indicate that the information requested was being compiled.

      19. The petitioners supplied brief observations on the case in a note of February 27, 1992.  They contest absolutely the May 10, 1989 court finding that Manuel Bolaños had died as a result of alcohol intoxication, and the court's conclusion that there existed no basis for a finding of personal responsibility.  They maintain that the version of events set forth by the Government is clearly contradicted by other available information, including the October 20, 1985 report of Commander Villota, in which he set forth that Manuel Bolaños died from the effects of interrogation and was buried by his interrogators.  They again reiterate the information found later in that report concerning the advice of Political Chief Ricardo Gutiérrez "to disappear the body and maintain absolute silence on the matter."

      20. The petitioners requested that the Commission:

           a.  find the Government of Ecuador responsible for the disappearance of Manuel Bolaños;

           b.  declare the Government in violation of Articles 4, 5 and 8 of the American Convention on Human Rights;

           c.  require an independent judicial investigation to determine the whereabouts of Manuel Bolaños, and to identify and punish those responsible in the case;

           d.  and require the payment of compensation to the family of Manuel Bolaños for the damage caused by the state agents who ordered and carried out his disappearance.

      21. The substantive portion of the petitioners' observations on the case was transmitted to the Government by a note of March 16, 1992.

      22. A copy of the military criminal process, designated number 004/85, undertaken to discover the authors of and accomplices and abettors to the death of Manuel Bolaños, was submitted to the Commission by the Government of Ecuador on August 18, 1992.  The file records that the process was initiated on October 29, 1985, and terminated on May 31, 1989.  The file consists of eighty-three pages of documents relevant to the process, and will be discussed in more detail below.

      II.        ANALYSIS

              ADMISSIBILITY

      1.   The complaint fulfills the formal requirements of admissibility contained in the American Convention on Human Rights and the Commission's Regulations.  In accordance with Article 47.b of the Convention, the Commission is competent to examine this case as it alleges facts tending to establish a violation of human rights as defined by the American Convention on Human Rights. 

      2.   In accordance with the requirements of Convention Articles 46.c and 47.d respectively, the subject of the petition is not pending settlement in another international proceeding, nor does it duplicate a petition previously examined by the Commission.  The Government had indicated in its communication of December 4, 1990, that this matter had been placed before the United Nations Commission on Human Rights for study.  The Inter-American Commission responded at that time that as the mandate of the United Nations Commission concerned general situations of human rights, its consideration did not inhibit the processing of the case in the instant forum.