CLÍMACO CUÉLLAR, CARLOS CUÉLLAR, ALEJANDRO AGUINDA, LEONEL AGUINDA,
DEMETRIO PIANDA, HENRY MACHOA, CARMEN BOLAÑOS, JOSUÉ BASTIDAS, JOSÉ
CHICANGANA, FROILÁN CUÉLLAR, AND HAROLD PAZ
On November 8, 1994, the Fundación Regional de Asesoría en
Derechos Humanos (hereinafter “INREDH” 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 denounced the
violation of the following rights protected by the American Convention on
Human Rights (hereinafter “the Convention” or “the American
Convention”): the right to
humane treatment (Article 5), the right to personal liberty (Article 7),
the right to a fair trial (Article 8), and the right to honor and dignity
(Article 11), all in breach of the obligations set forth at Article 1(1)
to the detriment of Juan Clímaco Cuéllar, Carlos Cuéllar, Alejandro
Aguinda, Leonel Aguinda, Demetrio Pianda, Henry Machoa, Carmen Bolaños,
Josué Bastidas, José Chicangana, Froilán Cuéllar, and Harold Paz.
The parties reached a friendly settlement in this case on June 25,
1998. This report contains a
brief presentation of the facts plus the text of the settlement agreement,
in keeping with Article 49 of the Convention.
On December 18, 1993, at approximately 10 a.m., armed and hooded
members of the military detained Colombian citizens Froilán Cuéllar and
José Otilio Chicangana in the Montepa sector. On December 19, 1993, at
approximately 9 a.m., also detained in the community of Nueva Esperanza
were Juan Clímaco Cuéllar, Henry Machoa, Alejandro Aguinda, and Demetrio
Pianda. Later that same day, and in the same place, Leonel Aguinda and
Carlos Enrique Cuéllar were detained. On December 20, 1993, Josué
Bastidas and Harold Paz were detained.
All were detained by members of the Ecuadorian Army, without the
legal formalities and without being informed as to the causes of the
On December 27, 1993, the persons detained were handed over by the
Ministry of Defense to the Ministry of Government in Quito, with the
request that they be placed at the disposal of the corresponding judicial
From the moment they were detained until their transfer to Quito,
the victims were kept incommunicado, without access to an attorney or
their relatives, in violation of Article 130 of the Ecuadorian Code of
During the detention, the victims were subjected to physical and
psychological torture, such as deprivation of food, water, and sleep,
being forced to drink urine and mud, being blindfolded during the
detention, deprivation of mobility of the arms and feet, electric shock to
the genitalia and extremities, inhalation of gasses, beatings with sticks,
burns on the body, asphyxia in water and with plastic covers, sexual
abuses, injection of drugs, threats to kill family members, and simulated
shooting. The only woman
detained was also raped by the members of the military, and even by other
detainees, who were forced to commit such acts. The purpose of the torture
was to obtain self-incriminating statements. Four of the detainees
withstood the torture without incriminating themselves; the other seven
The victims were also deprived of the guarantees of due process.
The appeal of the detention and the criminal proceeding were subject to
unwarranted delay. Four of the victims regained their freedom on August
30, 1994, after charges were dismissed with prejudice.
The other seven were released on September 4, 1996.
All were acquitted, and in the proceedings it was shown that there
had been human rights violations.
On December 17, 1996, the victims presented a claim to the
President of the Republic, requesting compensation for acts carried out by
state officials, called for in Article 23 of the Constitution. This claim
was denied. In May 1997, an action was presented to the
Contentious-Administrative Court, for the same purpose.
The legal counsel to the President answered that the action should
be dismissed, since the statute of limitations had run, and noted that the
President of the Republic was not responsible for the actions of the
members of the armed forces or police. The Office of the Attorney General
never answered the action.
PROCESSING BEFORE THE COMMISSION
After the Commission received the complaint and opened the case, on
April 24, 1998, the Commission placed itself at the disposal of the
parties for the purpose of reaching a friendly settlement.
That settlement was reached on June 25, 1998. The parties asked the
Commission to ratify the present friendly settlement agreement in its
entirety, and to supervise its implementation.
FRIENDLY SETTLEMENT AGREEMENT
The friendly settlement agreement signed by the parties reads as
following persons were present at the signing of this friendly settlement
agreement: For the first
party, Mr. Milton Alava Ormaza, in his capacity as Attorney General, and
sole judicial representative of the Ecuadorian State, as accredited in the
appointment and certificate of office, duly authenticated, which are
attached as qualifying documents, and for the second party Catholic Church
prelate Bishop of Sucumbíos, Monsignor Gonzalo López Marañón, in his
capacity as representative of Messrs. Juan Clímaco Cuéllar, Carlos Cuéllar,
Alejandro Aguinda, Leonel Aguinda, Demetrio Pianda, Henry Machoa, Carmen
Bolaños, Josué Bastidas, José Chicangana, Froilán Cuéllar, and Harold
Paz, whose identities are attested to by the copies of their respective
citizen ID cards, who for the purpose of this Agreement shall be referred
to as the “peasants of Putumayo.”
Monsignors Gonzalo López Marañón’s power-of-attorney is
attached as a qualifying document to this friendly settlement agreement.
Attorney General, Mr. Milton Alava Ormaza, is appearing under Article 139
of the Constitution of Ecuador, and pursuant to Article 3 of the Organic
Law of the Office of the Attorney General, published in the Registro
Oficial Nº 335 of June 9, 1998.
December 16, 1993, in the sector called Peña Colorada, canton of
Putumayo, province of Sucumbíos, members of a combined patrol of the
Ecuadorian Army and Police were ambushed by unidentified persons; 11
members of the Ecuadorian forces were killed.
a result of this attack, the peasants from Putumayo whose names are
indicated were detained.
with these detentions, which were without a written order from a competent
authority, without an indictment, and with incommunicado detention for
more than 24 hours, the detainees were subjected to a series of violations
of human rights, such as physical, sexual, and psychological torture, in
this way requiring them to make spurious statements which were the basis
for a criminal trial substantiated in the various judicial entities. Finally, however, the charges were dismissed with prejudice
in the cases of Demetrio Panda, Alejandro Aguinda, Leonel Aguinda, and
Josué Bastidas, a measure that was affirmed by the Fourth Chamber of the
Superior Court of Justice of Quito; and the motion for cassation brought
by the persons convicted was accepted, and so on August 28, 1996, Messrs.
Juan Clímaco Cuéllar, Carlos Cuéllar, Henry Machoa, Carmen Bolaños,
José Chicangana, Froilán Cuéllar, and Harold Paz were absolved by the
First Chamber for Criminal Matters of the Supreme Court of Justice on
August 28, 1996.
on these judicial pronouncements in the court of last resort, the peasants
who were unjustly detained and convicted presented a property-related
claim to the President of the Republic, based on the provisions of Article
23 of the Constitution and Articles 130 to 134 of the Administrative Legal
Regime of the Executive Function, but they received no response. They filed a personal appeal before the
Contentious-Administrative Court, which to date has not been resolved.
final judgment that declared the innocence of the peasants from Putumayo,
and the forensic studies done by the experts from the National Council for
the Control of Narcotic and Psychotropic Substances (CONSEP), designated
by the Ninth Criminal Law Judge of Pichincha, as well as the psychological
and psychosocial exams performed on the victims, are all clear and
convincing evidence of the illegal and arbitrary detentions, and of the
physical, sexual, and psychological torture to which they were subjected.
acts carried out by the agents of the Ecuadorian State violated the
constitutional and statutory provisions of Ecuadorian law; Articles 1, 5,
7, 8, and 11 of the American Convention on Human Rights; and Article 10 of
the Inter-American Convention to Prevent and Punish Torture.
addition, there were violations of Articles 19, 20, and 22(1), 22(19)(g)
and 22(19)(h) of the Constitution of Ecuador.
November 8, 1994, the peasants of Putumayo submitted a complaint against
the Ecuadorian State to the Inter-American Commission on Human Rights for
illegal and arbitrary detention, incommunicado detention, torture, and
violation of the presumption of innocence, incorporating abundant
documentary and testimonial evidence to justify the allegations.
May 4, 1995, the Inter-American Commission on Human Rights admitted the
case for processing, and assigned it case number 11.478, as it considered
the claim to meet the jurisdictional requirements of the American
Convention on Human Rights.
- STATE RESPONSIBILITY
domestic judicial proceeding was characterized by unjustified delays,
highly technical arguments, inefficiency, and denial of justice.
The Ecuadorian State could not demonstrate that it was not its
official agents who illegally and arbitrarily detained and tortured the
peasants from Putumayo, and held them incommunicado, nor could it refute
that those actions were at odds with the Constitution, the legal framework
of the Ecuadorian State, and the international standards that protect
- RECOGNITION OF RESPONSIBILITY AND ACCEPTANCE OF THE ECUADORIAN STATE
this context, the Ecuadorian State recognizes its culpability in the facts
narrated before the Inter-American Commission on Human Rights, and is
undertaking to adopt reparative measures by recurring to the institution
of friendly settlement provided for in Article 45 of the Regulations of
the Inter-American Commission on Human Rights.
view of the foregoing, the Ecuadorian State, represented by the Office of
the Attorney General, makes a one-time payment of US$ 100,000 (one hundred
thousand U.S. dollars) each, or its equivalent in national currency, to
Juan Clímaco Cuéllar, Carlos Cuéllar, Alejandro Aguinda, Leonel Aguinda,
Demetrio Pianda, Henry Machoa, Carmen Bolaños, Josué Bastidas, José
Chicangana, Froilán Cuéllar, and Harold Paz. This sum is related to that
demanded by them, and is compensation for the delay in paying them since
they formulated their claim on December 17, 1996, to the President of the
compensation covers the consequential damages, loss of income, and moral
damages suffered by the peasants of Putumayo, and shall be paid to them
pursuant to the domestic 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.
- COMPENSATION FROM GUILTY PERSONS
friendly settlement agreement does not include such compensation as the
peasants of the Putumayo have the right to claim the persons responsible
for their unlawful and arbitrary detention, torture, and incommunicado
detention, under Articles 52 and 67 of the Ecuadorian Criminal Code, but
it renders without effect the claim filed against the Ecuadorian State
before the Contentious-Administrative Court.
Office of the Attorney General, in representation of the Ecuadorian State,
states for the record that the peasants of Putumayo were victims of
illegal and arbitrary detention, breaking and entering, torture,
incommunicado detention, and violation of the presumption of innocence,
based on unfounded accusations. The
Office of the Attorney urges the Armed Forces of Ecuador and the National
Police, in carrying out their mission of exercising vigilance along the
border with Colombia, to observe the guarantees of due process to which
all persons who are accused of criminal infractions have a right.
Ecuadorian State, through the Office of the Attorney General, pledges to
encourage the State Attorney General and the competent judicial organs, to
bring criminal charges against those persons who are considered to have
participated in the facts alleged, and to encourage the public or private
organs with competence to contribute legally supported information that
makes it possible to bring those persons to trial.
trial shall be carried out subject to the constitutional and statutory
order of the Ecuadorian State, and in the event that the offenses
attributable to them have not legally prescribed.
Ecuadorian State, through the Office of the Attorney General, agrees to
report every three months to the Inter-American Commission on Human Rights
or the Inter-American Court of Human Rights on compliance with the
obligations assumed by the State in this friendly settlement agreement.
- LEGAL BASIS
compensatory damages that the Ecuadorian State is awarding to the peasants
of Putumayo are provided for in Articles 23 and 25 of the Constitution of
the Republic of Ecuador for violations of the individual rights and
guarantees and of the provisions of the American Convention on Human
Rights, of which Ecuador is a signatory country.
peasants of Putumayo specifically authorize 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, in their respective capacities, freely and voluntarily express
their conformity with and their acceptance of the content of the preceding
clauses and state for the record that this ends case Nº 11.478 before the
Inter-American Commission on Human Rights, and that in the future they
will have no claims to file over this case.
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
The petitioner informed the IACHR in February 2001 that the State
proceeded to pay the compensation agreed upon in the friendly settlement
agreement. Similarly, the
petitioner reported that the case, after lengthy problems of jurisdiction
in Quito, went to the courts in the province of Sucumbíos, where it
suffered the same fate. Finally, jurisdiction was found to lie in the
First Criminal Law Judge of Sucumbíos in December 2000, without it
advancing beyond the investigative phase as of that date.
On March 7, 2001, the State informed the Commission that criminal
proceedings had been instituted to determine the sanctions and
responsibility of the persons implicated in the violations 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 ongoing
commitment assumed by Ecuador with regard to the trial of the persons
presumed responsible for the facts alleged.
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$ 100,000 as
compensation to each of the victims of the situations alleged, and to note
the lack of compliance with respect to the punishment of the persons
responsible for the violation alleged, and with respect to the payment of
interest for the delay in payment of the above-noted sum.
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
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.
There is nothing in Ecuadorian law according to which the military
authorities can deprive persons of liberty, keep them incommunicado,
and then hand them over to the competent civilian authorities.
Article 130: “If the accused is deprived of liberty, his or her
testimony shall be taken within 24 hours, counted from the moment he
or she is brought before the Judge. This term may be extended for
another 24 hours when the Judge considers it necessary or when the
accused so requests.
incommunication of the accused, which may only be ordered by the
Judge, and may not last more than 24 hours, shall not keep him or her
from having direct communication with his or her defense counsel.”