On December 10, 1997, Kelvin Vicente Torres Cueva (hereinafter
“the petitioner”) 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”) alleging
violations of the following rights protected by the American Convention on
Human Rights (hereinafter “the American Convention” or the
“Convention”): the right
to humane treatment (Article 5); the right to personal liberty (Article
7); the right to a fair trial (Article 8); the right to equality before
the law (Article 24); and the right to judicial protection (Article 25),
all in breach of the obligations assumed under Article 1(1), to the
detriment of Mr. Torres.
The parties reached a friendly settlement in this case on June 11,
1999. This report contains a
brief presentation of the facts and the text of the agreement, in keeping
with Article 49 of the Convention.
On June 21, 1992, the petitioner was detained at 12:00 noon by a
group of 20 hooded and heavily-armed persons, who, beating him, forced him
into a vehicle. At no time
was he shown an arrest warrant by a judge with jurisdiction, nor was he
informed of the motives for his detention, nor did they identify
themselves as police. He was
deprived of his liberty, mistreated, and subjected to prolonged
incommunicado detention. This detention occurred in the context of “Operation
Cyclone” (“Operativo Ciclón”) of the National Police, to
fight drug trafficking, according to the petitioner, merely for being a
relative of Jorge Hugo Reyes Torres, the alleged head of a group of drug
Later, the petitioner was taken to the offices of the former SIC,
now Quito Regiment No. 2, where he was placed in an underground cell and
held incommunicado for 33 days. During
this time he was tortured by being beaten in the stomach and about the
ears, and with electric shock, to get him to memorize a statement that he
was to give afterwards to the representative of the Public Ministry.
After 33 days of incommunicado detention during which time he was
unable to see his family or an attorney, the petitioner was taken to a
yard along with several detainees, where some 50 hooded and heavily armed
police pointed their weapons at him and the other detainees.
They inserted the weapons in their mouths and pulled the trigger,
but they were not loaded. This
was part of an effort to get them to sign self-incriminating statements.
Afterwards, he was blindfolded and taken to Pavilion “A” of the
Penal García Moreno prison, where he was allowed to receive visitors.
He was held incommunicado for a total of 38 days.
The police report was made known to the police chief who accused
him, ordering pre-trial detention in trials for illicit enrichment and
conversion of assets, and issued arrest warrants on July 30 and 31, 1992,
Later, the judges disqualified themselves from continuing the
investigative phase, when it was shown that one of the accused was subject
to special jurisdiction, and they remitted the proceedings to the Office
of the President of the Superior Court of Quito, which had jurisdiction,
and criminal proceedings were begun again during September and November
1992, affirming the pre-trial detention order issued against the
petitioner in the criminal proceedings, with issuance of the respective
imprisonment orders on December 1, 1992. According to the petitioner, this showed that he was
illegally arrested, as there was no arrest warrant issued by a judge, and
he remained in that condition until July 31, 1992, when the chief of
police issued the first arrest warrant.
In 1996, in the trials for conversion of assets and illicit
enrichment, the President of the Superior Court, when ruling,
provisionally dismissed the charges against the petitioner and ordered his
release. This ruling could
not be carried out, as the Law on Narcotic and Psychotropic Substances of
Ecuador provides that such an order must necessarily be subject to
consultation with the next highest body, and that the accused cannot be
released until that body makes its ruling. The petitioner also filed a habeas corpus
motion before the President of the Supreme Court of Justice, seeking his
immediate release; this petition went unanswered, even though from 1995 to
1998 the petitioner constantly sought action on these motions. Finally, on May 7, 1998, the consultation was resolved and it
was ordered that charges be dismissed with prejudice. The petitioner also denounced that according to the laws of
Ecuador, the consultation must be resolved within 15 days, and in this
case it took more than one year. On
July 6, 1998, after an appeal by the petitioner of the refusal of the
mayor to release him through the filing of a writ of habeas corpus,
the Constitutional Court ordered the petitioner released.
Petitioner was released on July 16, 1998, after having been
detained for six years and 25 days on suspicion, with a provisional arrest
In the trial for illegal straw man on March 23, 1998, it was
ordered that the trial phase, with petitioner as the accused, proceed; the
respective judgment is about to be handed down in that case.
PROCESSING BEFORE THE COMMISSION
On December 29, 1997, the Commission received the complaint and on
March 19, 1998, the Commission initiated the processing of this case and
asked the State to provide the pertinent information.
On February 9, 1999, the Commission proposed to the parties that
they initiate the procedure to pursue a friendly settlement.
On February 15, 1999, the petitioner accepted the proposal.
On June 11, 1999, the friendly settlement agreement was signed by
the parties, with the presence of then-member of the Commission and
rapporteur for Ecuador, Carlos Ayala Corao, who had traveled to Quito to
facilitate the process.
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 Mr. Kelvin Vicente Torres Cueva, 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
Mr. Kelvin Vicente Torres Cueva, as appears from the special power of
attorney No. 12/99 executed before the Consulate of Ecuador in London,
England; 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 Mr. Kelvin Vicente Torres Cueva enshrined in
Article 5 (right to humane treatment), Article 7 (right to personal
liberty), Article 8 (fair trial), Article 24 (equality before the law),
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, considering 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. 11.991
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 Mr. Kelvin Vicente
Torres Cueva a one-time compensatory payment in the amount of fifty
thousand US dollars (US$ 50,000) 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 Mr. Kelvin Vicente Torres Cueva, as well as any other
claims that Mr. Kelvin Vicente Torres Cueva or his family members 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
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 Mr. Kelvin
Vicente Torres Cueva 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
Kelvin Vicente Torres Cueva 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 Mr. Kelvin Vicente
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 September 25, 2000, CEDHU reported to the Commission that on
August 30, 2000, the State proceeded to make payment of the compensation
agreed upon. Even
though the State undertook to pay interest for the delinquency in payment,
and even though the compensation was to be exempt from any tax other than
the one-percent, the State has failed to comply with the commitments
acquired on June 11, 1999, in respect of both interest and taxes.
The State has not met its duty to try and punish the persons
The Commission reiterates its recognition of the Ecuadorian State
for its decision to settle the case through reparative measures, including
those needed to punish the persons responsible for the violation alleged.
The IACHR also reiterates is recognition of the petitioner for accepting
the terms of the agreement.
The IACHR will continue to monitor compliance with the commitments
assumed by Ecuador, regarding the trial of the persons considered
responsible for the facts alleged, and payment of the interest for late
payment of the compensation, which to date have not been carried out.
The IACHR ratifies that the friendly settlement procedure 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 resolving alleged violations,
which may be used by both parties (petitioners and the State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To recognize that the State has made payment of the US$ 50,000 in
compensation, and to note its failure to carry out its commitments to
punish the persons responsible for the violation alleged, and to pay
interest for the delinquency in payment of the compensation.
To urge the State to make the decisions needed to carry out the
pending commitments to bring to trial the persons considered responsible
for the facts alleged, and to pay interest for the delinquency in payment
of the compensation.
To continue to monitor and supervise compliance with each and every
one of the points of the friendly settlement agreement, and, in that
context, to remind the State, through the Office of the Attorney General,
of its commitment to report to the IACHR every three months on 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.
and signed at the headquarters of the Inter-American Commission on Human
Rights in Washington D.C., on this the 5th day of October 5, 2000.
(Signed): Hélio Bicudo, Chairman; Claudio Grossman, First
Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman and