On August 6, 1997, Gay McDougall and Romina Picolloti, representing
the International Human Rights Law Group; Judith Kimerling and Sister
Elsie Monge, representing the Comisión Ecuménica de Derechos Humanos
(CEDHU: Ecumenical Commission for Human Rights); Patrick F.J. Macrory,
Laura M. Reifschneider, and Richard Wilson, representing the International
Human Rights Law Clinic of the Washington College of Law, American
University (hereinafter “the petitioners”), filed a petition with the
Inter-American Commission on Human Rights (hereinafter “the
Commission” or the “IACHR”) against the Republic of Ecuador
(hereinafter “the State” or “the Ecuadorian State,” or
“Ecuador”), for violations of the following rights protected by the
American Convention on Human Rights (hereinafter “the American
Convention” or the “Convention”):
the right to life (Article 4); the right to humane treatment
(Article 5); the right to personal liberty (Article 7); the right to a
fair trial (Article 8), the rights of the child (Article 19); and the
right to judicial protection (Article 25).
On May 20, 1998, a friendly settlement agreement was signed, put
forth by the Commission, pursuant to which the Ecuadorian State accepted
its responsibility for the facts alleged.
This report contains a brief presentation of the facts and the text
of the agreement, in keeping with Article 49 of the Convention.
On January 8, 1988, brothers Carlos Santiago and Pedro Andrés
Restrepo Arismendy were detained by the National Police of Ecuador, and
were later disappeared while under the custody of the National Police.
After 11 months during which the parents of these two minors
received incoherent and illegal results from the National Police, they
began to make this case public, seeking collaboration by the Ecuadorian
State, which not only failed to yield any positive result with respect to
the fate of the minors, but also brought threats to the family if they
were to continue publicizing what happened.
In 1990, a Special Commission took charge of this case; it was able
to determine that the brothers, both minors, had been detained, tortured,
killed and disappeared by the National Police of Ecuador, and that their
bodies had been dumped in a small lake.
After the results produced by the Special Commission, several
judicial proceedings were begun, without ending in a declaration of State
responsibility for this act, and without giving any official information
on the current whereabouts of the two minors.
PROCESSING BEFORE THE COMMISSION
On August 6, 1997, the Commission received a petition submitted by
the petitioners against the Ecuadorian State, which was transmitted to the
State on January 22, 1998. The
case was processed in keeping with the Commission’s Regulations.
On February 24, 1998, the Commission placed itself at the disposal
of the parties with a view to initiating the process of pursuing a
friendly settlement. On March
4, 1998, a meeting was held at Commission headquarters, in which the
petitioners and the State participated in order to draw up the friendly
settlement agreement, and finally, on May 14, 1998, this agreement was
signed by the parties in the city of Quito, Ecuador.
THE FRIENDLY SETTLEMENT AGREEMENT
The friendly settlement agreement adopted by the parties reads as
SETTLEMENT ENTERED INTO BY THE ECUADORIAN STATE AND MR. PEDRO RESTREPO,
FATHER OF MINORS CARLOS SANTIAGO AND PEDRO ANDRÉS RESTREPO ARISMENDY, IN
RELATION TO COMPLAINT No. 11.868 BEFORE THE INTER-AMERICAN COMMISSION ON
HUMAN RIGHTS, HEADQUARTERED IN WASHINGTON.
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 Mr. Pedro
Restrepo, father of minors Carlos Santiago and Pedro Andrés Restrepo
Arismendy, who attests to this capacity by showing his citizenship card
and the birth certificates of the minors named, certified copies of which
Attorney General, Mr. Milton Alava Ormaza, is appearing under Article 13
of the Constitution of Ecuador, and pursuant to Article 17(d) of the Law
Amending the Law on Narcotic and Psychotropic Substances and Rules for the
Office of the Attorney General, promulgated in the second supplement of
the Registro Oficial No. 173 of October 15, 1997, replacing Article
11 of the Organic Law of the Public Ministry, published in the Registro
Oficial No. 871, of June 10, 1979.
Pedro Restrepo demonstrates, with the relevant documents listed above, and
in his capacity as the sole beneficiary of his sons, pursuant to Articles
1045 and 1052 of the Civil Code, in relation to the death of his wife,
Mrs. Elena Arismendy de Restrepo, attested to by the death certificate, a
certified copy of which is attached.
From the judicial proceedings and other investigations undertaken in
Ecuador, it is concluded that on January 8, 1988, brothers Carlos Santiago
and Pedro Andrés Restrepo Arismendy, of Ecuadorian nationality, minors,
were detained by members of the National Police, and, while in their
power, disappeared. They were
driving a beige Chevrolet Trooper.
January 9, 1988, their family members initiated an unsuccessful search in
detention centers for minors, hospitals, and all along the route they had
January 10, 1988, the disappearance of these two minors was reported to
the then-Criminal Investigation Service of Pichincha (“SIC-P”).
commanders of the National Police in charge of the investigation, after a
series of dilatory tactics and contradictions, submitted a report that
upheld the hypothesis that the Restrepo brothers had disappeared as the
result of a traffic accident.
two youths’ bodies were never found at the supposed accident site.
Special International Investigative Commission, designated for the purpose
by the national government at that time, made up of prominent
international figures and by the Attorney General, after intense
verification and analysis, concluded that the Restrepo Arismendy brothers
disappeared while in the hands of members of the National Police of
Ecuador, and that their bodies were cast into Yambo lake, in the province
acts carried out by the official agents of the Ecuadorian State were
violative of the constitutional and statutory provisions of our domestic
legal order, as well as of the American Convention on Human Rights, of
which our country is a signatory, and Articles 19, 20, and 22(1) and
(19)(h), and Article 25 of the Constitution of Ecuador.
addition, there were violations of Articles 1, 3, 4, 5, 7, 8, and 25 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 brothers Carlos
Santiago and Pedro Andrés Restrepo Arismendy, to the point of torturing
them and taking their lives, nor could it refute that those actions were
at odds with the Constitution, with our country’s legal framework, and
with respect to the international conventions that guarantee human rights.
- RECOGNITION OF RESPONSIBILITY AND ACCEPTANCE OF THE ECUADORIAN STATE
this context, the Ecuadorian State has recognized, before the
Inter-American Commission on Human Rights, its culpability in the facts
narrated and has undertaken 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$ 2,000,000 (two
million U.S. dollars or its equivalent in national currency), to Mr. Pedro
José Restrepo Bermúdez, pursuant to Articles 1045 and 1052 of the Civil
Code, to be paid from the National Budget.
compensation covers the consequential damages, loss of income, and moral
damages suffered by the Restrepo Arismendy family, and shall be paid to
Mr. Pedro Restrepo, 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
- COMPENSATION FROM GUILTY PERSONS
friendly settlement agreement does not include such compensation as the
father of the Restrepo Arismendy brothers has the right to claim from the
persons responsible for their unlawful and arbitrary detention, torture,
death, and disappearance, and who have been found guilty, under Articles
52 and 67 of the Ecuadorian Criminal Code; this compensation has been
recognized in the ruling handed down by the President of the Supreme Court
of Justice of Ecuador in a judgment of March 31, 1998.
SEARCH FOR THE RESTREPO BROTHERS
90 days at most, counted from the formalization of this agreement, the
Ecuadorian State, represented by the Attorney General, undertakes to carry
out a complete, total, and definitive search, in Yambo lake, for the
bodies of the Restrepo brothers, which, it is considered, may have been
cast into it in 1998 or subsequent years, and to recover them if located.
To this end, the Ministry of National Defense shall make available
a team of scuba divers from the Ecuadorian Navy to the Office of the
Attorney General; they will be joined by a team or teams of specialized
private organizations, whose assistance will be sought by the Office of
the Attorney General or that are provided on a volunteer basis by
Ecuadorian or international human rights organizations.
The Ministry of Government, for its part, will provide the full
collaboration needed to secure this objective.
- FREEDOM OF ACTION
Ecuadorian State undertakes not to interfere in the constitutional and
statutory rights of freedom of expression and freedom of assembly of the
Restrepo family, their sympathizers, and human rights organizations that
join this cause for the purpose of commemorating the death of Carlos and
Pedro Andrés Restrepo Arismendy or for other purposes related to this
event. The National Police
and Armed Forces shall guarantee these natural and juridical persons the
free exercise of these guarantees, in keeping with Ecuadorian law.
Office of the Attorney General, in representation of the Ecuadorian State,
states for the record that, in relation to Mr. Pedro Restrepo, his
deceased wife, and his family in general, no charges are or have been
pending for activities outside the law, or outside of what is moral, and
that any speculation, rumor, or suspicion stated or conveyed through
private persons or authorities against the honor or good name of the
persons indicated are absolutely tendentious and lack any basis
whatsoever. To the contrary,
the Office of the Attorney General has sufficient grounds to state, with
no doubt, that Mr. Restrepo and his family, through their legitimate and
honorable efforts, have contributed, as have other foreign citizens, to
the progress of Ecuador.
- PUNISHMENT OF PERSONS NOT PLACED ON TRIAL
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, in the performance of
their police functions, are considered to have participated in the death
of brothers Carlos Santiago and Pedro Andrés Restrepo Arismendy.
The Office of the Attorney General undertakes to encourage the
public or private organs with competence to contribute legally supported
information that makes it possible to bring those persons to trial.
If it takes place, this trial shall be carried out subject to the
constitutional and statutory order of the Ecuadorian State, and,
consequently, shall not proceed against those persons who have been
subject to a final judgment by the Supreme Court of Justice of Ecuador, or
in the event that the offenses attributable to them have legally
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.
- LEGAL BASIS
compensatory damages that the Ecuadorian State is awarding to Mr. Pedro
Restrepo are provided for in Articles 23 and 25 of the Constitution for
violations of the constitutional and statutory provisions of Ecuadorian
law, and the provisions of the American Convention on Human Rights, of
which Ecuador is a signatory country.
Pedro Restrepo specifically authorizes the Attorney General to notify the
Inter-American Commission on Human Rights of this friendly settlement, so
that the Commission may confirm and ratify it in its entirety.
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. 11.868 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 friendly settlement agreement
transcribed is compatible with the provisions of Article 48(1)(f) of the
Under the agreement, the Ecuadorian State fulfilled its main
obligation to pay Mr. Pedro José Restrepo Bermúdez, the father of the
minors, the sum of US$ 2,000,000.00 (two million U.S. dollars) as
compensation for the consequential damages, lost earnings, and moral
damages suffered by the Restrepo Arismendy family.
In addition, the Ecuadorian State undertook to carry out a total,
definitive, and complete search for the bodies in the Yambo lake, and to
recover them, if located. As of two years after the signing of the friendly settlement
agreement, this commitment has not been carried out.
Nor has the Ecuadorian State carried out its commitment to request
the judicial bodies with jurisdiction to prosecute criminally the persons
considered to have participated in the torture, disappearance, and death
of the Restrepo Arismendy brothers, and in covering up those acts.
The Commission reiterates its recognition of the Ecuadorian State
for its decision to settle this case by reparative measures, including
those needed to bring civil, criminal, and administrative proceedings
against the persons who, in the performance of government functions,
participated in the violations alleged.
The IACHR will continue to monitor compliance with the continuing
commitments assumed by Ecuador to bring civil, criminal, and
administrative proceedings against the persons who, while performing
government functions, participated in the violations alleged.
The IACHR ratifies that the possibility of friendly settlement
provided for in the American Convention makes it possible to conclude
individual cases in a non-contentious manner, and has proven, in cases
from several countries, to offer an important vehicle for settling
violations alleged that may be used by both parties (petitioners and the
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To recognize that the State has made payment of US$ 2,000,000 as
compensation, and note that it has failed to carry out its commitment to
search for the bodies and to punish the persons responsible for the
To urge the State to take the measures needed to comply with the
commitments still pending to carry out the total, definitive, and complete
search for the bodies of the two brothers, and the criminal trial of the
persons considered to have participated in the torture, disappearance, and
death of the Restrepo Arismendy brothers, as well as in covering up those
To continue to monitor and supervise compliance with the settlement
agreement, and, in this context, to remind the State, through the Office
of the Attorney General, of its commitment to report “periodically, upon
request of the Inter-American Commission on Human Rights or the
Inter-American Court of Human Rights, as to the performance of the
obligations assumed by the State under this friendly settlement.”
To make this report public and to 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
Washington D.C., on this the 5th day of October, 2000.
(Signed): Hélio Bicudo, Chairman; Claudio Grossman, First
Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman and