On November 8, 1994, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”), received a
complaint alleging violation of rights protected in the American
Convention on Human Rights (hereinafter “the American Convention”) by
the Republic of Ecuador (hereinafter “the State” or “Ecuador”) to
the detriment of Mr. Rigoberto Acosta Calderón, a Colombian national,
represented by the Comisión Ecuménica
de Derechos Humanos [Ecumenical Human Rights Commission] (CEDHU)
(hereinafter “the petitioner”). The
petition claims violation of Articles 7(3), 7(5), 8(1), 8(2)(e), 24, and
25, in connection with Article 1(1) of the American Convention.
The petitioner says that on November 15, 1989, Mr. Acosta was
arrested by the Customs Military Police in the “La Punta” area of the
city of Lago Agrio, on suspicion of drug trafficking.
The detention of Rigoberto Acosta from November 15, 1989 to
December 8, 1994, when a final judgment was rendered, allegedly violated
Articles 7(3), 7(5), and 8(2) of the American Convention.
The petition further alleges violation of Article 8(2)(e) of the
Convention because Mr. Acosta did not have access to an attorney during
the preliminary inquiry conducted by the military police; a public
defender was not appointed for him when he was brought before the criminal
court; he was kept away from the place of the proceedings, impairing his
right to a hearing with due guarantees by the judge processing the case;
and his declaration was only taken two years afterwards, thus violating
his right recognized in Article 8(1) of the American Convention.
At no time during Mr. Acosta’s trial for drug trafficking did the
drugs appear. Accordingly, it was not possible to carry out the procedure
that the law provides to demonstrate the physical existence of the crime,
which consists of the examination, weighing and destruction of the seized
substance, which acts must be officially recorded on a certificate.
Despite the foregoing, the judge only closed the preliminary
hearing on November 16, 1993, and issued an acquittal ruling in favor of
the petitioner on December 3, 1993, finding there to be no physical proof
of the crime. The acquittal
ruling was referred for consultation to the First Chamber of the Superior
Court in and for Quito, which nine months later issued a ruling on July
22, 1994 and remanded the case back to the Judge of Lago Agrio in August
1994. The Criminal Court
found that the crime had been proven and on December 8, 1994, Mr. Acosta
was sentenced to nine years’ imprisonment.
In the trial of Mr. Rigoberto Acosta Calderón, the preliminary
hearing was supposed to have taken 60 days but in this case took four
years. Furthermore, the
mandatory consultation, which should have been resolved in 15 days, took
more than 270 days. Mr. Rigoberto Acosta Calderón was in custody
throughout all that time, before being released on July 29, 1996, due to
having served part of his sentence as a remand prisoner.
The State argues that Mr. Acosta was arrested, tried and convicted
for the crime of drug trafficking in accordance with the law in force and,
therefore, the Commission should find the petition inadmissible.
The Commission finds in this report that the case meets the
admissibility requirements provided in Articles 46 and 47 of the American
Convention. Therefore, the
Commission decides to declare the case admissible, to notify the parties
of this decision, and to continue with its analysis of merits regarding
the alleged violations of Articles 7, 8, 24, and 25 of the American
The Commission also decides to publish the instant report.
PROCESSING BY THE Commission
The Commission received the respective complaint on November 8,
1994. On March 1, 1996, the
Commission received additional information from the petitioner.
Notes were sent to the State on May 2 of that year.
On April 27 the Commission requested the petitioner for additional
information and repeated its request to the Government to provide
information on the facts alleged in the petition.
On July 29, 1999, the petitioner replied to the IACHR, providing
the information requested, which was transmitted to the Government for
comment on August 20, 1999. On
September 27, 1999, the Government sent the IACHR its comments on the last
communication from the petitioner. Those comments were forwarded to the
petitioner on November 2, 1999. On
January 4, 2000, the Government of Ecuador again sent additional
information, which was transmitted to the petitioner on February 10, 2000.
posiTIONS OF THE partIes
Position of the petitioner
On November 15, 1989, Mr. Acosta, a Colombian national, was
arrested on the charge of drug trafficking by the Customs Military Police
in the “La Punta” sector of the city of Lago Agrio, eastern Ecuador.
The petitioner adds that Mr. Acosta was taken to a police station where
his preliminary statement was taken and a report prepared that said that
the drugs consisted of two pounds, 12 ounces of cocaine paste. On the
basis of that report, the Judge of Lago Agrio Criminal Court ordered Mr.
Acosta’s arraignment and that he be remanded in custody.
The petitioner alleges that there were a series of irregularities
in the processing of the case: a) in the proceeding, testimonies were
received from persons unconnected with the matter; b) a report was found
concerning the weight of the drugs allegedly found at Lago Agrio Hospital,
but that document neither mentioned the court order requesting that
measure, nor did it state that the report pertained to the proceeding
instituted against Mr. Acosta.
In addition to the foregoing, the petitioner says that since there
was no physical evidence of the crime -that is, an examination and
chemical analysis of the alleged drugs to determine what type of drugs
they were- the prosecutor refrained from presenting charges against him,
for which reason the judge presiding over the case ordered Mr. Acosta’s
acquittal on December 3, 1993.
On July 22, 1994, the acquittal ruling was referred for
consultation to the First Chamber of the Superior Court, which overturned
it and issued a summons for Mr. Acosta to appear at the second stage of
the trial, with the argument that even though the drugs did not undergo
chemical analysis or examination nor were they destroyed, the police
report said that he (Mr. Acosta) was arrested with two pounds, 14 ounces
of drugs, and that document proved the physical existence of the crime.
In respect of the foregoing, the petitioner says that proof of the
lack of evidence to convict Mr. Acosta is the separate vote that opposed
the criterion that the Chamber adopted when it decided to reverse the
10. On December 8,
1994, the Criminal Court found Mr. Acosta guilty and sentenced him to nine
years’ imprisonment. The petitioner says that an application for his
release was only presented to the Criminal Court on July 25, 1996. That
request was based on the Code of Execution of Criminal Sentences, and was
heeded on July 29 of that year, when Mr. Acosta was granted parole.
Based on the foregoing, the petitioner alleges that the State has
committed the following violations of the American Convention: a)
violation of Article 7(3), because he was arbitrarily detained for six
years and seven months for a crime which he did not commit, given that
there was no evidence in the trial of the drugs allegedly found in the
possession of Rigoberto Acosta Calderón; b) violation of Article 7(5),
because Rigoberto Acosta Calderón was not tried within a reasonable time;
he was arrested on November 15, 1989, the preliminary proceeding took four
years (it was closed on November 16, 1993), the judge did not order his
acquittal until December 3, 1993, which decision was referred for
consultation to the First Chamber of the Superior Court and took seven
months and 19 days to resolve.
The case was remanded to the judge who found Rigoberto Acosta
Calderón guilty, taking four months and 16 days to render a decision,
when the law provides a time limit of 10 days for a ruling; and, c)
violation of Article 8(1) and 8(2), because the State did not provide him
with counsel to assist him in his defense, since Rigoberto Acosta Calderón
lacked the wherewithal to retain an attorney to defend him at the
proceeding. Furthermore, his
lawful right of defense was impaired by being imprisoned at a place 480
kilometers from the court where his trial was proceeding.
Finally, the petitioner says that the State has violated Mr.
Rigoberto Acosta’s right to personal liberty, his right to be presumed
innocent, to a hearing by a competent tribunal, to have counsel appointed
for him by the State in order to ensure his right of defense, his right to
a fair trial, his right to judicial protection, and his right to equal
protection; the foregoing rights are protected by Articles 7, 8, 24, and
25 of the American Convention, in relation to Article 1(1) of said
Position of the State
The State says in its reply to the petition that on November 15,
1989, the Criminal Court in and for Lago Agrio ordered the arraignment of
Rigoberto Acosta Calderón and that he be remanded in custody, basing his
decision on a report
from the Customs Police District Headquarters, which said that Rigoberto
Acosta Calderón was carrying two pounds, 14 ounces of cocaine paste.
That report also says that according to the preliminary statement
taken from Rigoberto Acosta Calderón, he admitted having agreed to carry
across a suitcase belonging to a woman whose first name he said was Magola,
who had offered to pay him 30,000 sucres to do so.
The Tribunal of Napo, for its part, says that the there is no
record in the case of a certificate of examination of physical evidence;
only a photocopy of a document certified by the director of Lago Agrio
Hospital and the clerk of the court.
The State adds that although Rigoberto Acosta Calderón denied
criminal responsibility for the crime of which he was accused, the
Prosecutor refrained from proffering charges against him.
Accordingly, the Second Criminal Court in and for Tugurahua ruled
that the accused be acquitted. Subsequently,
said ruling was referred for mandatory consultation to the Superior Court
of Quito, which reversed the acquittal ruling and ordered the opening of
the second stage of the proceeding, arguing that Rigoberto Acosta Calderón
had committed the crime recognized in Article 33 of the Drug Control and
Trafficking Act [Ley de Control y Tráfico de Estupefacientes] in force at that time.
On October 8, 1994, Rigoberto Acosta Calderón was sentenced to
nine years’ imprisonment. Later,
on July 29, 1996, the Criminal Court in and for Napo ordered the release
of Mr. Rigoberto Acosta Calderón.
The State says that the parole application on behalf of Rigoberto
Acosta Calderón was denied by the Director of Social Rehabilitation of
Ambato and the Superior Court in and for Ambato because it was expressly
prohibited under Article 115 of the Narcotic Drugs and Psychotropic
Substances Act [Ley de Sustancias
Estupefacientes y Psicotrópicas].
Finally, the State says that international responsibility cannot be
imputed to the Government of Ecuador because, according to the foregoing
facts, Rigoberto Acosta Calderón was arrested, tried, and convicted in
accordance with the law in force in the country, and that he eventually
regained his freedom 24 months before completing his sentence.
AnALYSIS OF AdmisSIBILITY
competence ratione personae, ratione
loci, ratione temporis, and ratione materiae
The petitioner is entitled to lodge petitions with the IACHR under
Article 44 of the American Convention. The petition cites as an alleged
victim an individual on whose behalf Ecuador undertook to respect and
ensure the rights recognized in the American Convention. Insofar as the
State is concerned, the Commission finds that Ecuador has been a state
party to the American Convention since December 28, 1977, when it
deposited its respective instrument of ratification. Accordingly, the
Commission has ratione personae competence
to examine the petition.
The IACHR has ratione loci competence to take up the petition because it claims
violations of rights protected in the American Convention that allegedly
took place in the territory of a state party to that treaty.
The IACHR has ratione temporis competence inasmuch as the duty to respect and
ensure the rights recognized in the American Convention was in force for
the State at the time when the alleged violations contained in the
petition are said to have occurred.
Finally, the Commission has ratione
materiae competence because the petition alleges violations of human
rights protected by the American Convention.
Other admissibility requirements for the petition
Exhaustion of domestic
The Commission finds firstly that the State has not provided any
explanation for the period of three years and nine months that it took the
court to conduct the preliminary hearing, or why the courts took four
years and 11 months, a period longer than that which the law provides, to
reach a decision on the legal situation of Rigoberto Acosta Calderón.
The State argues that, insofar and inasmuch as they led to his
conviction, the arrest, trial, and conviction of the petitioner were
carried out in accordance with the law.
The State does not dispute exhaustion of domestic remedies, which
were concluded with the judgment of October 8, 1994, when Mr. Acosta was
sentenced to nine years’ imprisonment.
Deadline for lodging the petition
Article 46(1)(b) of the Convention says that the petition
must be lodged within a period of six months from the date on which the
petitioner is notified of the final judgment that exhausted
domestic remedies. In this
case, the petitioner argues that he did not have an effective recourse
against the unwarranted delay in the Ecuadorian judicial system, which
resulted in the excessive period that he was held as a remand prisoner
and, consequently, under Article 46(2)(a) of the Convention he is exempt
from the requirement to exhaust domestic remedies.
The petitioner lodged the case with the Commission on November 8,
1994; in other words, one month after Rigoberto Acosta Calderón was
notified of the conviction of October 8, 1994 that sentenced him to nine
years’ imprisonment. Given
that it “is not concerned with” Mr. Costa’s “innocence or guilt in
the crimes imputed to him by the Ecuadorian courts”,
the Commission finds that the petition was presented on time.
Duplication of proceedings and res
The Commission finds that the subject matter of the petition is not
pending in another international proceeding for settlement, nor is the
petition substantially the same as one previously studied by the
Commission or by another international organization.
Accordingly, the requirements set forth in Articles 46(1) (c) and
47(d) have also been met.
Nature of the alleged violations
The Commission finds that the allegations, if proven, could
establish violations of the rights recognized in Articles 7, 8, 24, and 25
of the American Convention. Furthermore, in its examination of the merits the Commission
will analyze the procedural requirement of consultation under Ecuadorian
law, and whether or not the nature and effects of consultation might
violate the rights to personal liberty, a fair trial, and judicial
protection, all of which are recognized by the American Convention.
Based on the foregoing, the Commission considers that the
requirements contained in Article 47(b) of the Convention have been met.
Based on the factual and legal arguments given above and without
prejudging the merits of the matter, the Commission concludes that this
case meets the admissibility requirements set forth in Articles 46 and 47
of the American Convention.
Inter-American Commission on Human Rights,
To declare this case admissible as regards Articles 7, 8, 24, and
25 of the American Convention.
To transmit this report to the petitioner and the State.
To continue with the analysis of merits in this case.
To publish this report 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 10th day of October, 2001.
Grossman, President; Juan Méndez, First Vice-President; Marta
Altolaguirre, Second Vice-President; Commission members Hélio Bicudo,
Robert K. Goldman, and Peter Laurie.
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate
in the discussion of this case in accordance with Article 17 of the
Rules of the Procedure of the IACHR.
Article 67 of the Code of Criminal Procedure in force at that time
provides as follows: “Appraisal of police proceedings.
On the basis of a reasoned opinion and admissible evidence, the
Judge shall also appraise the report, inquiry, and evidence prepared
by the Judicial Police.”
The new Rules of Procedure of the Inter-American Commission on Human
Rights entered into force on May 1, 2001.
The separate vote states that it was not possible to establish the corpus
delicti without a chemical analysis of the drugs.
Article 401 of the Code of Criminal Procedure in force at that time
says that consultations must be decided within 15 days counted from
receipt of the case.
The acquittal ruling was reversed on July 22, 1994.
Article 157 of the Code of Criminal Procedure in force at that time
says, “Grounds for a criminal proceeding.
The basis of a criminal action is proof, in accordance to law,
of the existence of some punishable deed or omission.
Consequently, in order to secure a conviction, both that proof
and the responsibility of the accused must be demonstrated in the
Article 46(2)(a) provides, "The
provisions of paragraphs 1(a) and 1(b) of this article shall not be
applicable when: a) the
domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have
allegedly been violated."
Cf. Inter-Am. Ct.H.R., Suárez Rosero Case, Judgment of November 12, 1997, para. 37.