Nº 94/01 *
FERNANDO CABRERA GUERRERO
On June 22, 2000, the Inter-American Commission on Human Rights
(hereinafter “the IACHR” or “the Commission”) received a complaint
submitted by Juan Fernando Cabrera Guerrero (hereinafter “the
petitioner”) against the Republic of Ecuador (hereinafter “the
State” or “Ecuador”), accusing it of illegal arrest and failing to
provide compensation for that illegal arrest. The petitioner claimed
violations of Articles 7(5) (right to personal liberty), 8 (right to a
fair trial), 11 (right to privacy), and 17 (rights of the family) of the
American Convention on Human Rights (hereinafter “the American
Convention”), all in breach of the obligations set forth in Article 1(1)
thereof. In turn, the State replied that the petition did not meet the
requirements set forth in Article 46(1)(a) and (b) and asked the IACHR to
dismiss the complaint.
In this report, the IACHR analyzes the available information in
accordance with the American Convention and concludes that the petitioner
did not lodge his petition within six months following the date on which
the alleged victim was notified of the final ruling. Consequently, the
Commission decides to declare the petition inadmissible under Articles
46(1)(b) and 47(a) of the American Convention and Article 32 of its Rules
of Procedure, to transmit it to the parties, to make it public, and to
order its publication in its Annual Report.
PROCESSING BY THE COMMISSION
On June 22, 2000, the IACHR received the complaint in the instant
case. On June 30, 2000, the Commission began processing the petition and
transmitted the relevant communications to the State and to the
petitioner. The State sent its reply on August 30, 2000, which was
received by the Commission on September 20, 2000. The Commission continued
with the formalities for collecting comments from the parties set forth in
its Rules of Procedure.
POSITIONS OF THE PARTIES
The petitioner, an engineer, lives and works in Guayaquil, Ecuador.
He claims that on August 10, 1995, at approximately 11 o’clock, he was
arrested by agents of Interpol
on Av. 25 de Julio in the city of Guayaquil, without there being a
judicial order for his arrest. He was told he was being detained on
suspicion of involvement in an illegal marijuana transportation operation.
The petitioner also claims that he was kept incommunicado for twelve days,
with no contact whatsoever with his family or personal attorney, in breach
of Article 24(6) of the Ecuadorian Constitution,
which rules that no one may be detained without a judicial order for more
than 24 hours.
The petitioner claims that during that time, he was forced to
confess to having been involved in criminal acts that he did not commit.
He says that his home was searched without a warrant from a competent
judge; moreover, no evidence against him was found.
The petitioner reports that after being held incommunicado for
twelve days, he was referred to the Second Criminal Judge of Guayas, who
ordered the proceedings against him initiated on August 22, 1995, marking
the start of criminal trial No. 333-95. The Second Judge ordered the
petitioner to be held in preventive custody. This judge was removed, and
the proceedings were transferred to the Ninth Criminal Judge of Guayas.
The petitioner also attests that after the investigatory phase of
the proceedings, the Ninth Criminal Prosecutor of Guayas, Julio Piza Obregón,
issued a ruling in which he did not accuse the petitioner of any crime
whatsoever. The judge ordered the proceedings dismissed because of the
lack of evidence indicating the petitioner’s guilt.
The petitioner reports that the Ninth Criminal Judge ordered the
referral of this dismissal order to the Superior Court of Justice in
Guayaquil and did not order his release, even though there is no legal
provision requiring the accused to remain in prison while an order is
referred to a higher court. The referral was received by the Prosecuting
Minister of Guayas and Galápagos, Justo Loor Choez, who refrained from
accusing the petitioner of any crimes. Once that ruling was issued, the
proceedings were referred to the fifth chamber of the Superior Court of
Justice of Guayaquil for resolution.
The petitioner claims that the fifth chamber resolved to summon the
petitioner to trial for the crime referred to in the proceedings, basing
its decision on the testimony of another defendant, Oscar Jiménez Foronda,
who had made a statement reporting the petitioner’s involvement in the
offense. Consequently, investigatory proceedings was ordered to be opened
against the petitioner for his complicity in the commission of the crime
described and criminalized by Article 62 of the Law on Narcotics and
The petitioner claims that the statement given by Jiménez Foronda
at the offices of Interpol was completely different to the statement he
gave the judge during the investigatory phase of proceedings. The
petitioner further adds that in a judgment handed down on December 24,
1997, Ecuador’s Constitutional Tribunal declared Article 116 of the Law
on Narcotics and Psychotropic Substances to be unconstitutional, which enabled the fifth
chamber to summon the petitioner to attend investigatory proceedings. That
article allowed police reports and pretrial statements given by the
accused to the prosecutor to indicate serious assumptions of guilt. He
also claimed that Article 108 of the Ecuadorian Code of Criminal Procedure
does not allow the judge to admit codefendants as witnesses.
The fifth chamber of the Superior Court of Justice referred the
criminal case to the Fourth Criminal Tribunal of Guayas for it to issue
judgment. For that, the petitioner reports, a public hearing was held at
which his defense attorneys invoked Article 108. At that hearing, the
public prosecutor, Roberto Cabrera Castillo, did not accuse him of any
crime. Nevertheless, claims the petitioner, the court convicted him on
January 18, 1999, declaring him guilty of the crime described and
criminalized by Article 62 of Law on Narcotics and Psychotropic
Substances, with a four-year prison sentence. This ruling was referred to
the corresponding district Court of Justice for consultation. On July 22,
1999, after studying the proceedings, the fifth chamber of the Superior
Court of Justice of Guayaquil acquitted the petitioner and ordered his
The petitioner reports that after he was released, on December 21,
1999, he took his case to the attorney general in compliance with Article
22 of the Ecuadorian Constitution,
to sue the State for the judicial error and secure compensation in
the amount of USD $4 million. He also holds that since he received no
reply from the attorney general, in compliance with the rule that says if
a public official fails to respond to a petition lodged by a citizen
within a period of fifteen days his silence shall be taken as constituting
tacit acceptance, the petitioner believes that the State has accepted his
claim. Nevertheless, the State has at no time contacted him to pay him the
compensation sought. With this, the petitioner claims that all the
remedies provided by domestic law have been exhausted.
The petitioner holds that the four years it has taken to resolve
his situation violates the rights protected by Articles 7(5) and 8(1) of
the American Convention. He also holds that Article 8(2) was violated, in
that he was kept in preventive custody for a lengthy period and his
freedom was restricted beyond the limits strictly necessary to ensure the
efficient course of the investigation and to keep him from escaping from
justice. He states that keeping him incommunicado for twelve days violates
the rights enshrined in Articles 11 and 17 of the American Convention, in
that incommunicado detention constitutes an undue restriction of his
family’s right to be informed about his situation.
According to the State, the petitioner has not exhausted the
remedies that domestic law provides for dealing with his claim, and he has
exceeded the deadline of six months following the final ruling which
released him during which any petition with the Commission must be lodged.
Consequently, the State holds that the IACHR cannot admit this petition.
With respect to the compensation sought for his alleged illegal
arrest, the State notes that the petitioner, without passing through other
judicial instances, filed an administrative claim directly with the
attorney general of the State, whose office is not a court of law. As
regards the administrative silence to which the petitioner refers, the
State maintains that the attorney general did reply to the petitioner’s
communication within the time stipulated by law; for the purpose, it
enclosed a copy of its letter to the petitioner, which appears in the
Commission’s files. In that letter of January 17, 2000, the attorney
general’s office stated that its purpose was to intervene on behalf of
public interests, as either plaintiff or defendant, in defense of the
State and its institutions. The office of the attorney general is not a
court of law, and its powers and functions do not include judging actions
carried out by either state agents or private citizens. The State holds
that the attorney general is neither competent nor responsible for the
alleged violations, and neither is it the right body for making
The State also maintains that it has civil responsibility for the
judicial errors arising from the inappropriate administration of justice,
as set forth in Article 22 of the Ecuadorian Constitution, and that it
also has right to recovery with respect to the judge or official involved;
thus, suing the judge or magistrate responsible for the mistake for
damages is a possibility. The State quotes Articles 1031 and 1036 of the
Ecuadorian Civil Code, which allow civil action against a judge or
magistrate who, in the performance of his duties, causes economic harm to
the parties in a trial, or to third parties, through an inappropriate
administration of justice. If the suit is admitted, the State notes, the
judgment would specifically require the payment of both damages and costs.
If applicable, the corresponding criminal proceedings would be ordered.
The State believes that the petitioner should file suit against the judges
and magistrates he believes responsible for the delay in or denial of
justice, and that he should hear the result of that action in the domestic
courts before involving the Commission. Consequently, the State holds that
the petitioner did not exhaust the domestic remedies applicable to his
In addition, the State maintains that the petition exceeds the
six-month deadline set by Article 46(1)(b) of the American Convention. The
State notes that the Inter-American Court has ruled that the final
decision in domestic proceedings must be taken as meaning when the
State’s courts hand down a final and firm judgment.
The State maintains that the decision referred to in Article 46(1)(b) is
judicial in nature, not administrative. The State notes that eleven months
passed by between the final judicial ruling in these proceedings-July 22,
1999, when the fifth chamber of the Superior Court of Justice of Guayaquil
acquitted the petitioner and ordered his immediate release — and the
date when the petitioner lodged his petition with the Commission, which
was June 22, 2000. The State consequently believes that the Commission
must refrain from hearing this petition, since it does not comply with the
provisions of Article 46(1)(b).
Competence of the
Commission Ratione Personae, Ratione
Loci, Ratione Temporis, and
The petitioner is entitled, under Article 44 of the American
Convention, to lodge complaints with the IACHR. The petition names, as its
victim, an individual person with respect to whom Ecuador had assumed the
commitment of respecting and ensuring the rights enshrined in the American
Convention. With respect to the State, the Commission notes that Ecuador
has been a party to the American Convention since depositing the
corresponding instrument of ratification on December 28, 1977. The
Commission therefore has competence ratione
personae to examine the complaint.
The Commission has competence ratione
loci to deal with the petition, since it alleges violations of rights
protected by the American Convention occurring within the territory of a
state party thereto.
The Commission has competence ratione
temporis, since the obligation of respecting and ensuring the rights
protected by the American Convention was already in force for the State on
the date on which the incidents described in the petition allegedly
Finally, the Commission has competence ratione
materiae, since the petition
violations of human rights that are protected by the American Convention.
Other Requirements for admissibility
The Commission finds that the petition at hand alleges, first, the
violation of the petitioner’s right to personal liberty, with the
consequences that that implies, and, second, the State’s failure to
provide compensation for the alleged violation of the right to personal
liberty. The Commission shall proceed to analyze these two aspects
Admissibility: Deadline for the presentation of petitions
In this petition, the petitioner claims that the State violated the
rights enshrined in Articles 1(1), 7(5), 8, 11, and 17 of the Convention
in the terms set forth above. The State claims that the petitioner lodged
his complaint after the end of the six-month deadline.
Article 46(1)(b) of the American Convention provides as follows:
by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
that the petition or communication is lodged within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment.
The Inter-American Court of Human Rights has ruled, in the Suárez
Rosero case, that judicial proceedings shall be understood as concluded
when the final ruling has been handed down. Thus, the Court believes
proceeding to be at an end when a final and firm judgment is delivered and
the jurisdiction thereby ceases and that, particularly in criminal
matters, that time must cover the entire proceeding, including any appeals
that may be filed.
In the case at hand, the petitioner received a firm acquittal from
the fifth chamber of the Superior Court of Guayaquil on July 22, 1999,
whereby he was immediately released and the judicial proceedings against
him were brought to a conclusion. The matter as regards the petitioner’s
freedom was thereby resolved. On June 22, 2000, the petitioner lodged a
complaint with the Commission, holding that his arrest had violated his
right to personal liberty as set forth in the American Convention. Between
the final judgment issued by the Ecuadorian courts and the petitioner’s
lodging of this complaint with the IACHR, eleven months went by—more
than the time allowed for the submission of petitions.
The petitioner claims that following his release, on December 21,
1999, he lodged a claim with the office of the attorney general, to which
he never received a reply. The petitioner holds that the period of six
months provided for by Article 46(b) of the American Convention should be
calculated from the date of that unanswered claim and that “this silence
should be taken as meaning acceptance of the petition.”
The State, in its reply, and in accordance with Commission
practice, disputes the petitioner’s claim and maintains that the
petitioner should have lodged his complaint within a period of six months
following the judgment handed down on July 22, 1999, by the fifth chamber
of the Superior Court of Justice of Guayaquil.
Consequently, its analysis of this case in accordance with Article
46(1)(b) leads the Commission to conclude that this petition does not meet
the requirements set forth in that article and that, as result, it is
inadmissible under the terms of Article 47(a).
Admissibility: Compensation for alleged illegal arrest
Since the petition is inadmissible on account of its failure to
meet the requirements set forth in Article 46(1)(b), the Commission
concludes that it is not necessary for it to examine this second matter.
on the foregoing considerations of fact and law,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this petition inadmissible.
To give notice of this 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 tenth
day of October, 2001. (Signed): Claudio Grossman, President; Juan Méndez,
First Vice President; Marta Altolaguirre, Second Vice-President;
Commissioners 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 compliance with Article 17 of the
Commission's Rules of Procedure.
The new Rules of Procedure of the
Inter-American Commission on Human Rights came into force on May 1,
Interpol is the
International Criminal Police Organization.
Article 24(6) of
the Ecuadorian Constitution stipulates that: “No person shall be
deprived of his freedom except with the written order of a competent
judge, in the cases, for the time, and with the formalities set forth
in law; this shall not apply to those arrested in
flagrante delicto, who may be kept under arrest without being
charged for up to 24 hours. This does not apply to disciplinary
arrests provided for by law within the state’s security forces. No
person may be kept incommunicado.”
Article 62 of
the Law on Narcotics and Psychotropic Substances reads as follows:
“Any person who buys, sells or otherwise transfers ownership of,
distributes, markets, imports, exports, or, in general, illegally
traffics in narcotic, psychotropic, or other controlled substances
shall be punished with imprisonment of between 12 and 16 years and a
fine of between 60 and 8,000 times the current general minimum wage.
Illegal trafficking in narcotic, psychotropic, or other controlled
substances shall be taken as covering all market transactions and
transfers of ownership of said substances carried out in contravention
of the terms of this Law.”
Article 116 of
the Law on Narcotics and Psychotropic Substances provided as follows:
“The police report and the pretrial statement given by the accused
in the presence of the public prosecutor shall constitute a serious
assumption of guilt, provided that the corpus
delicti is proven.” The substance of this article was declared
unconstitutional by Ecuador’s Constitutional Tribunal on December
Article 108 of the Ecuadorian Code of Criminal Procedure stipulates
that: “In no case shall the judge admit codefendants as witnesses.
Neither shall he receive testimony from the defendant’s spouse or
from his relatives by blood to the fourth degree or by marriage to the
Article 22 of
the Constitution of Ecuador provides as follows: “The State shall
have civil responsibility in cases of judicial error, for
inappropriately administering justice, for actions leading to the
imprisonment or arbitrary arrest of an innocent person, and for
violations of the provisions set forth in Art. 24. The State shall
have the right to recovery with respect to the responsible judge or
Suárez Rosero Case, Series
C: Decisions and Judgments, No. 35, Judgment of November 12, 1997,