On January 28, 1997, Marcia Irene Clavijo Tapia (hereinafter “the
petitioner”), with the legal assistance of the Comisión Ecuménica
de Derechos Humanos del Ecuador (Ecumenical Commission for Human
Rights) (hereinafter “the Petitioner” or “CEDHU”), 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 she alleged violations 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 judicial protection (Article 25), all in breach of the obligations set
forth in Article 1(1), to the detriment of Mrs. Clavijo Tapia.
The parties reached a friendly settlement in this case on June 11,
1999. This report contains a
brief statement of the facts and the text of the settlement agreement, in
keeping with Article 49 of the Convention.
On May 17, 1993, the petitioner was detained in Guayaquil, without
any arrest warrant, in connection with “Operation Silver” (la "Operativo
Plata”), an anti-drug operation.
She was taken to the Interpol offices in Guayas, where she was held
incommunicado for 15 days. During this time she was tortured in an effort
to get her to state that she was guilty of having participated in the act
Later, the petitioner was taken to the city of Quito and brought
before the Second, Seventh, and Tenth Criminal Judges of Pichincha, who
initiated criminal proceedings without indicating the motive or reason for
the petitioner’s detention, and all the persons whose names appeared in
the police report were accused generally, without analyzing the indicia of
responsibility in each case.
In the proceedings in the Tenth Court (Juzgado Décimo), the
petitioner filed an amparo
motion seeking her release before the President of the Superior Court,
which ruled favorably on it on September 10, 1996, and ordered the
petitioner released. The
petitioner also brought an amparo
motion within the proceeding in the Seventh Court (Juzgado Séptimo),
but it was rejected on the grounds that the petitioner was not accused in
On May 31, 1996, charges against petitioner were dismissed
provisionally in the proceeding before the Second Court (Segundo
Juzgado). The Fourth Chamber of the Superior Court, on ruling in
consultation, as provided for by Ecuadorian law in drug cases, affirmed
the dismissal on May 27, 1997. On
June 4, 1997, the Second Court (Segundo Juzgado) ordered the
petitioner released, and she regained her freedom on June 6, 1997.
The injury which is the cause of the allegation against the State
was for the time of deprivation of liberty without a verdict, in addition
to the violations of the right to humane treatment, to a fair trial, and
to judicial protection. The
fact that an individual is later released or convicted does not rule out a
violation of the reasonable time in pre-trial detention, as provided for
by Article 7 of the American Convention.
PROCESSING BEFORE THE COMMISSION
On March 5, 1997, the Commission received the complaint in this
case, which was opened as a case on July 31, 1997.
The case was then processed in keeping with the Commission’s
On February 9, 1999, the Commission invited the parties to pursue a
friendly settlement in this case. On
February 15, 1999, the petitioner accepted, and on July 11, 1999, the
friendly settlement agreement was signed in the city of Quito.
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. Segundo César Duque Chasi, on
behalf and in representation of Mrs. Marcia Irene Clavijo Tapia, 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. Segundo César Duque Chasi, on behalf and in representation of
Mrs. Marcia Irene Clavijo Tapia, as appears from the special power of
attorney executed before the 19th Notary of Guayaquil, Mrs. Ketty
Romoleroux; a copy of that document is also attached as a qualifying
STATE RESPONSIBILITY AND ACCEPTANCE
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mrs. Marcia Irene Clavijo Tapia enshrined in
Article 5 (right to humane treatment), Article 7 (right to personal
liberty), Article 8 (fair trial), and Article 25 (judicial protection),
and at the same time the general obligation contained in Article 1(1) of
the American Convention on Human Rights and other international
instruments, 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. 11.783
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 Mrs. Marcia Irene
Clavijo Tapia a one-time compensatory payment in the amount of sixty-three
thousand US dollars (US$ 63,000) 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 Mrs. Marcia Irene Clavijo Tapia, as well as any other
claims that Mrs. Marcia Irene Clavijo Tapia 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 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 Mrs. Marcia
Irene Clavijo Tapia 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
Marcia Irene Clavijo Tapia 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
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 Mrs. Marcia Irene
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the settlement agreement transcribed
is compatible with the provisions of Article 48(1)(f) of the American
On August 29, 2000, CEDHU informed the Commission that the State
proceeded to make the payment agreed upon.
Even though the State undertook to pay the interest for the
delinquency in paying the compensation, and that the compensation payment
would be exempt from any tax, except for the one percent tax on the
circulation of capital, the State has failed to carry out any of the
commitments it acquired on June 11, 1999, under this agreement.
The State has not paid the interest for delinquency in payment of
the compensation, and it has collected a tax of 0.8 percent on the
circulation of capital, at the moment of cashing the checks by which the
compensation was paid.
The State has failed in its duty to bring to trial and punish the
The Commission reiterates its recognition of the Ecuadorian State
for its decision to settle the case through reparative measures, including
those required 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 in question.
The IACHR will continue monitoring compliance with the commitment
assumed by Ecuador with respect to the trial and punishment of the persons
responsible for the violations alleged and payment of the interest for
late payment, commitments which have not been carried out to date.
The IACHR ratifies that the friendly settlement provision of the
American Convention makes it possible to conclude individual cases in a
non-contentious manner, and has proven, in cases regarding several
countries, to offer an important vehicle for settling violations alleged,
which may be used by both parties (petitioner and the State).
COMMISSION ON HUMAN RIGHTS,
To recognize that the State has made payment of US$ 63,000 as
compensation, and to note its failure to carry out its commitments to
punish the persons responsible for the violations alleged and to pay
interest for the delinquency in payment of the compensation.
To urge the State to take the measures necessary to carry out the
commitments pending with respect to bringing to trial and punishing the
persons responsible for the violations alleged, and to paying interest for
the delinquency in payment of the compensation.
To continue to monitor and supervise each and every one of the
points of the friendly settlement agreement, and, in this context, to
remind the State of its commitment to report to the IACHR every three
months regarding performance of the obligations assumed by the State under
this friendly settlement agreement.
To make this report public and to include it in its Annual Report
to the OAS General Assembly.
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.