1. On January 14,
2000, the Inter-American Commission on Human Rights (hereinafter “the
IACHR” or “the Commission”) received a complaint submitted by
Fernando Ribadeneira Fernández Salvador (hereinafter “the
petitioner”) against the Republic of Ecuador (hereinafter “the
State” or “Ecuador”), according to which the failure of the
Superintendency of Banks (an agency of the State) to control the Sociedad
Financiera Principal led to the bankruptcy of that corporation. The
petitioner is the chairman of the Board of Creditors and claims to have
suffered a personal loss of USD$600,000. He alleges violations of Articles
8 (right to a fair trial), 21 (right to property), and 25 (right to
judicial protection) of the American Convention on Human Rights
(hereinafter “the American Convention”), all in breach of the
obligations contained in Article 1(1) thereof. In response, the State
maintains that internal remedies have not been exhausted and requests that
that the IACHR dismiss the complaint for that reason and wait for the
resolution of the case in the domestic courts.
In this report, the IACHR analyzes the information available to it
and concludes, in accordance with the American Convention, that the
petitioner has not exhausted the remedies provided by domestic law and
that the exceptions set forth in Article 46.2 of the aforesaid
international instrument are not applicable. Consequently, the Commission
decides to declare the case inadmissible under Article 47.a of the
American Convention and Article 31 of the Commission’s Regulations, to
transmit this decision to the parties, to make it public, and to order its
publication in its Annual Report.
PROCESSING BY THE COMMISSION
On January 14, 2000, the IACHR received the complaint in the case
at hand. On April 20, 2000, the Commission proceeded to open the case and
transmitted the relevant notes to the State and the petitioner. On August
30, 2000, the State submitted its reply.
POSITIONS OF THE PARTIES
Position of the petitioner
4. The petitioner
claims that through the negligence of the Superintendency of Banks, an
agency of the State responsible for controlling the operations of
financial institutions in Ecuador, the Sociedad Financiera Principal
was bankrupted, causing him a personal loss of USD$600,000.
As a result of this, on December 4, 1998, the petitioner filed suit
against the Superintendency of Banks in the domestic courts, seeking
payment of damages for the harm caused by this lack of control over the
financial company. On December 22, 1998, the Eleventh Civil Judge in
Pichincha began to assess the suit and summoned the Superintendency of
Banks to appear. On May 19, 1999, the petitioner presented an amendment to
the suit, providing additional evidence that had not been considered in
his earlier submission. After this amendment was presented, the Judge
assessed it and summoned the Superintendency and the nation’s Attorney
General to appear. The petitioner claims that when his complaint was
placed before the IACHR, notification of the proceedings (the first
procedural step in the lawsuit) had not yet been served.
The petitioner claims that this delay in serving notice has
hindered the defense of his rights and that the judiciary is to blame for
the delay. He also claims his suit for damages is about to be affected by
a statutory limitation, in that the Ecuadorian Civil Code stipulates that
the right to take action expires four years after the harmful act, action,
or failure to act. Said expiration is interrupted only once notification
of the case has taken place.
The petitioner claims that his right to resolution within a
reasonable period of time, set forth in Article 8 of the American
Convention, has not been protected. In the case, he says, “the
proceedings have exceeded this reasonable time, particularly considering
that the matter is in no way complex, given the current state of the suit;
the plaintiff has in no way caused the delay; rather it has been the
behavior of the judicial authorities that has caused the delay.
Particularly if we see that an action that should take no longer than
three days has taken seven months.”
The petitioner also claims that the State is violating Article 21
of the Convention as regards both the right of ownership “of the goods
denied to him as a result of the State’s inaction and the right of
ownership of the personal right to seek amends from the originator of the
harm.” He states that the violation of Article 25 has arisen from “the
delay in which the judiciary is incurring.” The petitioner further
claims that this delay could also “make it impossible to obtain judicial
protection, on account of the statutory limitation that could apply to the
Finally, the petitioner maintains that the delay in the processing
of the suit by the domestic courts causes the provisions of Article 46(2)
to apply, under which the exhaustion of domestic remedies is not
Position of the State
According to the State, the petitioner filed suit against the
Superintendency of Banks on December 7, 1998, seeking payment of
USD$1,300,000 as damages for the alleged negligent attitude of that agency
in failing to maintain due control over Sociedad Financiera Principal.
The State claims that after the original suit was presented on
December 7, 1998, the Notifications Chamber summoned the Superintendent of
Banks, Dr. Jorge Egas Peña, on January 27 and February 1 and 3, 1999, and
the nation’s Attorney General on March 19, 1999. On March 1, the
Superintendent replied to the suit and proposed the peremptory and
dilatory exceptions he deemed applicable to the case. The Judge assessed
and admitted this response. On May 19, 1999, Dr. Alejandro Ponce Villacís,
the petitioner’s attorney, then amended the suit. In the amended suit,
the petitioner sought USD$1,300,000 as damages, USD$1,300,000 for pain and
suffering, and USD$1,300,000 for the harm caused to his personal life
plan, giving a total of USD$4,000,000. After the petitioner amended his
suit, the Judge ordered, on July 12, 1999, that the defendants once again
be summoned to appear and, the State claims, since that date, “neither
the plaintiff nor his attorney have submitted any petitions or granted the
legal powers necessary to proceed with notification.”
The State also claims that the proceedings have not yet concluded
and that the domestic courts must resolve them in accordance with law
“and such a resolution, regardless of whether it is favorable or
unfavorable, is the best way to resolve the petitioner’s situation.”
The State also notes that according “to the European Court of Human
Rights, the reasonableness of a measure or a period of time must be seen
in its own specific context, and so the State has resolved this case in a
period of time commensurate with the proceedings in question, within the
possibilities available to the State.”
The State points out that the resources provided in Ecuadorian
procedural law are available to the petitioner and that he could invoke
them if in disagreement with the ruling of the lower-court judge. Thus,
Article 237 of the Code of Civil Procedure states that: “An appeal is a
claim that one of the litigants or another interested party makes to a
higher judge or court, seeking the nullification or amendment of a decree,
act, or ruling of a lower authority.” The State also notes that the
petitioner could seek the nullification of a sentence handed down by the
corresponding chamber of the Superior Court in cases in which judges have
incurred in legal or procedural errors.
competence ratione materiae, ratione personae, and
The Commission has prima facie competence to examine this
petition. The petitioner is entitled to appear and has made allegations
regarding a failure to comply with provisions of the American Convention
by agents of a state party thereto. The incidents alleged in the petition
occurred at a time when the State was under the obligation of respecting
and guaranteeing the rights set forth in the Convention. Ecuador deposited
its instrument of ratification for the American Convention on December 28,
1977. The events of this case took place between 1996 and 1998.
Requirements for the admissibility of the petition
Exhaustion of domestic remedies
As the IACHR has already stated, “The rule of prior exhaustion of
domestic remedies is based on the principle that a defendant state must be
allowed to provide redress on its own and within the framework of its
internal legal system.”
The Court and the Commission have said, on several occasions, that when a
State maintains that a petitioner has not met the requirement of first
exhausting domestic remedies, it is required to indicate which remedies
are available and effective.
The Court has also said that, “once a State Party has shown the
existence of domestic remedies for the enforcement of a particular right
guaranteed by the Convention, the burden of proof shifts to the
complainant, who must then demonstrate that the exceptions provided for in
Article 46(2) are applicable.”
The State claims that the remedies suitable for resolving the
alleged illicit actions involved in this case are the following: an appeal
against the ruling of the lower-court judge, or the nullification of the
sentence by the Superior Court.
The Commission notes that the petitioner has not challenged the
State’s claim regarding the availability of the remedies provided by
domestic law for seeking said protection and, consequently, the exceptions
set forth in Article 46.2, paragraphs (a) and (b) are not applicable. In
such cases, the burden of demonstrating that there was an unwarranted
delay in resolving those remedies falls on the petitioner, in accordance
with the terms of Article 46(2)(c) of the American Convention.
The Inter-American Court has said that it “shares the view of the
European Court of Human Rights, which in a number of decisions analyzed
the concept of reasonable time and decided that three points should be
taken into account in determining the reasonableness of the time in which
a proceeding takes place: a) the complexity of the case, b) the procedural
activity of the interested party, and c) the conduct of the judicial
The Commission understands that the complexity of a case does not
fully justify an unwarranted delay in judicial proceedings. The Commission
refrains from evaluating the complexity of the matter before the
Ecuadorian domestic courts because that information is not available to
it. However, it is clear that the petitioner’s behavior made a
significant contribution to the slowness of the proceedings. After the
original suit was brought before the courts in December 1998, the domestic
judge issued the corresponding summonses in January, February, and March.
In May 1999, the petitioner submitted an amended version of his suit and,
on July 12, 1999, the Court ordered the defendants to be summoned anew
and, since that time, neither the petitioner nor his attorney, Dr.
Alejandro Ponce Villacís, have presented any petitions or carried out the
requisite legal procedures necessary for the summonses to be issued.
In this case, according to the information submitted to the
Commission, it can be seen that the petitioner has obligations pending
with the Ecuadorian courts before the proceedings can be concluded. As a
result, the Commission finds that seven months, in light of the
characteristics of this case, cannot be considered unreasonable.
Analyzing the information provided by the two parties reveals that
the petitioner has not exhausted the remedies available under domestic
Ecuadorian law and that he has not presented evidence indicating an
unjustified delay in the resolution of those remedies.
The IACHR has determined that the petition does not meet the
requirement set forth in Article 46(1)(a) of the American Convention and
that the information submitted by the parties does not allow application
of the exceptions provided for in Article 46(2) thereof. Consequently, the
Commission concludes that the petition is inadmissible, in accordance with
Article 47(a) of the American Convention.
Based on the foregoing considerations of fact and law,
COMMISSION ON HUMAN RIGHTS
To declare this case inadmissible.
To give notice of that decision to the petitioner and to the State.
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., on the third
day of October, 2000. (Signed): Hélio
Bicudo, Chairman, Dean Claudio Grossman, First Vice-Chairman; Juan Méndez,
Second Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K.
Goldman, Peter Laurie and Julio Prado Vallejo.
IACHR, 1996 Annual Report, Report No. 39/96, Case 11.673, Santiago
Marzioni (Argentina), October 15, 1996, paragraph 49, p. 85.
See: Inter-Am.Ct.H.R., Loayza Tamayo Case, Preliminary
Exceptions, Judgment of January 31, 1996, paragraph 40; and IACHR,
1997 Annual Report, Report No. 28/98, Case 11.625, María Eugenia Morales de Sierra (Guatemala), March 6, 1998,
paragraph 28, p. 150.
Inter-Am.Ct.H.R., Advisory Opinion OC-11/90 Exceptions
to the Exhaustion of Domestic Remedies (Arts. 46.1, 46.2.a, and 46.2.b
of the American Convention on Human Rights), requested by the
Inter-American Commission on Human Rights, August 10, 1990, paragraph
Inter-Am.Ct.H.R., Suárez Rosero
Case, Judgment of November 12, 1997, paragraph 72.