3. Petitions declared inadmissble
On 9 November 1999, the Inter-American Commission on Human Rights
(hereinafter "the Commission") received a complaint presented
by the former Minister of Government and Police of the Republic of
Ecuador, César Verduga Vélez (hereinafter "the petitioner")
against the Republic of Ecuador (hereinafter "the State" or
"Ecuador") alleging that the State had violated his following
human rights: (a) the right to personal liberty (Article 7), the right
to a fair trial (Article 8), the right to participate in government
(Article 23), the right to judicial protection (Article 25), and the
duty to adopt provisions of domestic law (Article 2), all enshrined in
the American Convention on Human Rights in breach of the obligations set
forth in Article 1(1) thereof. For
its part, the State responded that the petitioner had not exhausted his
domestic remedies and requested the Commission to file the complaint.
On 10 November 1998, César Verduga Vélez, then Minister of
Government and Police of Ecuador, was accused by the President of the
Supreme Court of Justice of misuse of funds and public documents in the
exercise of his functions, and was ordered to be placed in preventive
custody. The petitioner
indicates that he was out of the country at the time that criminal
prosecution was initiated against him and has remained out of the
country until the present time. The
petitioner also alleged that he had not been afforded the basic judicial
guarantees necessary for him to appear before the courts in Ecuador.
In this report, the Commission analyzes the information presented
in the light of the American Convention and concludes that the
petitioner has not exhausted domestic legal remedies for his situation
in Ecuador. The Commission
therefore decides to declare the petition inadmissible in accordance
with Articles 46(1)(a) and 47(a) of the American Convention and Article
31(1) of the Commission’s Rules of Procedure,
to notify the parties accordingly, to make its decision public, and to
arrange for its publication in the Commission’s Annual Report.
The State, moreover, maintains that the petitioner should
exercise his rights and appear in court in Ecuador.
PROCEEDINGS BEFORE THE COMMISSION
On 1 May 2000, the Commission took up the petition, under the
number 12.274, and transmitted the relevant portions thereof to the
Ecuadorian state, allowing 90 days for the presentation of information.
The State presented a detailed response on 10 August 2000, and
the relevant portions thereof were transmitted to the petitioner for his
observations. On 15
September 2000, the petitioner presented additional information, which
was remitted to the State with a deadline of 30 days.
On 5 December 2000, the Commission reiterated its request for
information to the State. On
22 January 2001, the petitioner presented additional information, which
was transmitted to the State for its observations.
On 26 January 2001, the State presented its observations, and the
relevant portions thereof were transmitted to the petitioner.
On 30 January 2001, the petitioner presented additional
information, which was remitted to the State with a deadline of 30 days. On 5 March 2001, the petitioner presented new additional
information, which was remitted to the State.
On 28 March 2001, the State requested an extension, which was
duly granted by the Commission. On
16 November 2001, the petitioner presented additional information to the
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioner affirms that during the period from 12 February
1997 to 30 January 1998 he served as Minister of Government and Police
of Ecuador, during the administration of the Interim President of the
Republic, Dr. Fabián Alarcón Rivera.
The petitioner affirms that by virtue of the functions assigned
by Ecuadorian domestic law to the Ministry of Government and Police, a
special budgetary allocation was made to that agency for expenses which
were to remain secret or confidential.
According to the petitioner, the accounts covering the use of
these confidential expenses were subject to approval by the Comptroller
General of the State, pursuant to the applicable regulation.
The petitioner indicates that during his term as Minister of
Government and Police he contracted professionals who prepared studies
in connection with work being performed by the Ministry.
He also affirms that upon the delivery of these studies, the
agreed amounts were paid and that, given the secret or confidential
nature of these expenses, the law authorized direct contracting without
the need for any kind of public or private offer or bidding process.
The petitioner indicated that the accounts covering the use of
confidential or secret expenses were presented to, and reviewed and
approved by, the Comptroller General of the State, who was authorized by
law to approve the use of such public funds.
The petitioner affirms that the law required the Comptroller
General of the State, after approving the final balance sheets for the
confidential expense accounts, to order the incineration of instruments
documenting the secret contracts and corresponding payments, and that
the official had a legal obligation to destroy them. The petitioner also affirms that, in accordance with the
applicable provisions and a good-faith interpretation thereof, his
Ministry had also incinerated the reports containing the studies he had
The petitioner affirms that even though the Comptroller General
of the State had reviewed and approved the accounts for the confidential
expenses incurred by his ministry, the President of the Supreme Court of
Justice, Dr. Héctor Romero Parducci, ordered an investigation of the
allegations against him and ordered his preventive detention.
The petitioner alleges that during the preliminary proceedings,
when the Court ordered the investigation, he tried to demonstrate and
convince the President of the Supreme Court of Justice that the acts of
which he was accused did not constitute an offense of any kind and that
the Comptroller General of the State had already approved the accounts
for the confidential expenses of the Ministry of Government, which
demonstrated that the State agency under his authority had correctly
used these funds. The
petitioner maintains that without considering all of the evidence and
arguments put forward by his defense, the President of the Supreme
Court, on November 10, 1998, ordered a full trial for the crime of
embezzlement--not for the offenses that had motivated the preliminary
petitioner's brief indicates that this decision was appealed by his
attorneys and subsequently confirmed by the First Criminal Chamber of
the Supreme Court of Justice.
The petitioner argued before the Commission that on 22 March
1999, the Ecuadorian State had requested his extradition from the
Mexican Government, accusing him of having committed a criminal offense.
The petitioner indicated, as proof of his innocence of the
charges against him, that the extradition request was denied by the
Department of Foreign Relations of Mexico, based on a ruling by the
Third District Judge for Criminal Proceedings in the Federal District.
The denial indicates that Mexico was on the view that Ecuador had
not provided sufficient evidence to establish probable responsibility
for the charge of embezzlement. The
petitioner argued before the IACHR, that for this reason, he was a
victim of political persecution by the President of the Supreme Court of
Ecuador, and this demonstrated that his actions as Minister of
Government had been lawful.
In addition to the foregoing, the petitioner affirms that a
series of irregularities arose during the criminal proceedings, which
included: (a) that an investigation and preventive detention had been
ordered for acts that did not constitute an offense; (b) that he was
being tried by a court without jurisdiction; (c) that he was not being
judged by an impartial judge, since the President of the Supreme Court
had demonstrated clear antagonism towards him in order to prevent him
from presenting his candidacy for Parliament; (d) that the proceedings
were initiated in connection with two acts and that he was being judged
for a third act that had not been addressed by the proceedings; (e) that
he was being judged in the first and second instance by the Supreme
Court, in violation of his right to adjudication at two different
levels; (f) that his political rights to be a candidate for popular
election had been violated; and (g) that he had no swift or effective
recourse for stopping the violations against him.
With respect to the exhaustion of domestic remedies, the
petitioner maintains that his petition is admissible by virtue of the
absence of due process rules in Ecuador.
He also affirms that the absence of such rules notwithstanding,
he filed an appeal against the order to hold a full trial which was
dismissed by the First Criminal Chamber of the Supreme Court of Justice.
The petitioner maintains that given the absence of due process
rules, the exception contained in Article 46(2)(a) of the American
Convention is applicable and that, in the light of the case law of the
Inter-American Commission on Human Rights, it should be concluded that
domestic remedies in the present matter have been exhausted.
Based on these arguments, the petitioner requests that the
Commission declare the State responsible for violating the following
human rights: (a) the right to personal liberty (Article 7), the right to a
fair trial (Article 8), the right to participate in government (Article
23), the right to judicial protection (Article 25), and the duty to
adopt provisions of domestic law (Article 2), all enshrined in the
American Convention on Human Rights in breach of the obligations set
forth in Article 1(1) thereof.
Position of the State
The State maintains that the petitioner has not exhausted
domestic remedies for his complaint and requests, accordingly, that the
Commission declare the petition presented by former Minister César
Verduga Vélez inadmissible.
In response to the petitioner's arguments, the State
"requests that the economist Verduga return to the country and
exercise his rights before national courts of law, which (...) have all
of the fundamental characteristics recognized in the Convention".
The State also affirms that pursuant to Article 254 of the Code
of Criminal Procedure,
the criminal proceedings against the economist César Verduga Vélez
have been suspended at the full-trial stage, inasmuch as the petitioner
is at-large, and that the petitioner, therefore, cannot affirm that
domestic remedies have been exhausted or even that the criminal
proceedings initiated in the case have concluded.
The State adds that the petitioner has not been prevented from
using any recourse afforded by the law to contest judicial decisions,
including recourse to cassation.
The State indicates that the petitioner has, moreover, had free
access to domestic remedies and has never been denied access to the
bodies that have the authority to clarify his legal situation, and that
his right to due process, subject to judicial guarantees, has been fully
The State maintains that it is incumbent upon the petitioner to
prove to the Commission that he has taken the steps necessary to exhaust
remedies existing under Ecuadorian domestic law.
With respect to the procedural anomaly mentioned by the
petitioner, the State affirms that it has not omitted any step or
formality during the course of the proceedings that could have a bearing
on any substantive decision, and that it has adhered, throughout the
proceedings, to the principles of legality, impartiality, and due
process. The petitioner has
also been assured of his right to access to justice, having been free to
present evidence in his defense and to pursue effective forms of
recourse; the exercise of his right to defend himself has been fully
It should be noted, finally, that in its communication of 21
December 2001, the State ratified its initial position and again
requested that the Commission declare the initial petition inadmissible,
inasmuch as domestic remedies have not been exhausted.
The Commission’s jurisdiction ratione
personae, ratione loci,
ratione temporis, and ratione
The petitioner is entitled, under Article 44 of the American
Convention to present complaints to the IACHR.
The petition identified an individual person as a victim whose
rights under the American Convention Ecuador has undertaken to respect
and guarantee. With respect to the State, the Commission observes that
Ecuador has been a State party to the American Convention since 28
December 1977, when it deposited the instrument of ratification.
The Commission therefore has jurisdiction ratione personae to examine the petition.
The IACHR has jurisdiction ratione
loci to review the petition, inasmuch as violations of rights
protected in the American Convention have been alleged to occur within
the territory of a state party to that treaty.
The IACHR has jurisdiction ratione
temporis, inasmuch as the obligation to respect and guarantee the
rights protected in the American Convention was in force for the State
on the date when the acts alleged in the petition were said to have
23. Finally, the Commission has jurisdiction ratione materiae, inasmuch as the petition complains of violations of human rights protected by the American Convention.
Other requisites for admissibility
The Inter-American Court of Human Rights has held, in the Velázquez Rodríguez case, that “the objection asserting the
non-exhaustion of domestic remedies, to be timely, must be made at an
early stage of the proceedings by the State entitled to make it, lest a
waiver of the requirement be presumed.”
In its first response to the petition, in a manner consistent
with the Court's ruling, the State cited the non-exhaustion of domestic
It is also a fundamental rule in the inter-American system that
the State alleging nonexhaustion bear the burden of indicating the
domestic remedies that must be exhausted, and their effectiveness.
The Commission notes that the State has indicated that the
proceedings against the petitioner for misuse of public funds, initiated
on 10 November 1998, have been suspended at the full-trial stage, in
accordance with Articles 254 and 255 of the Code of Criminal
Procedure--the accused having fled--by the President of the Supreme
Court, the appropriate judge for the accused in his capacity as Minister
of Government and Police at the time that the alleged offenses were said
to have been committed. This
demonstrates the nonexhaustion of domestic remedies. According to the State, "these proceedings have still
not concluded, and the appropriate courts must proceed to resolve the
matter in accordance with the law.
The determination reached through this process, be it favorable
or unfavorable, is the appropriate remedy for the petitioner's situation
Given the subsidiary nature of the human rights treaties, the
rule of exhaustion of domestic remedies was created and enshrined in
Article 46(1)(a) of the American Convention.
The rule of exhaustion enables the State to resolve the complaint
at the domestic level before being faced with international proceedings.
27. The State has proven the existence of effective domestic remedies for the petitioner's legal situation. The Inter-American Court has held that “if a State which alleges non-exhaustion proves the existence of specific domestic remedies that should have been utilized, the opposing party has the burden of showing that those remedies were exhausted or that the case comes within the exceptions of Article 46(2).”
The petitioner maintained that domestic remedies had been duly
exhausted and that his petition was admissible, inasmuch as the
exception to the rule of exhaustion of domestic remedies provided for in
an Article 46(2)(a) of the American Convention was applicable.
This exception, for denial of justice, refers to the absence of
due process of law under the domestic legislation of Ecuador.
The Commission considers that in this case the exception is not
applicable. The Commission
considers that due to the subsidiary nature of the American Convention,
the petitioner must first use the remedies offered by the domestic
system for resolving the alleged due process violations.
The petitioner must appear before the State so that it can decide
the disputed point. The
Commission considers that in the present case the exceptions set forth
in Article 46(2) of the American Convention are not applicable.
It has not been shown through these proceedings that the
petitioner has been denied access to a remedy or that the has been
impeded from exhausting it, in light of the fact that he has not even
appeared in the courtroom. It
is also not possible to allege that in the present case there has been
an unjustified delay in the administration of justice.
The Commission considers it necessary to refer to the
petitioner's allegations regarding the alleged lack of independence and
impartiality of the judges in charge of the proceedings against him.
In this context, the Commission wishes to reiterate that the
decisive element is not the subjective fear of the affected person as
regards the tribunal's impartiality, but whether the fears can be
justified objectively. The
European Court has stated that: "In
principle, the personal impartiality of the members of a tribunal must
be presumed until there is proof to the contrary."
The Commission cannot conclude, in the abstract and without
concrete and reliable evidence that the future decisions of a tribunal
will be taken in a biased manner and without regard for the due process
For the reasons set forth above, the Inter-American Commission
considers that the petitioner has not exhausted the domestic remedies
available and therefore concludes that his petition is inadmissible
pursuant to Articles 46(1)(a) and 47(a) of the American Convention and
Article 31(1) of the Commission's Rules of Procedure.
32. Based on the arguments of fact and law set forth above,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present petition inadmissible.
To notify the petitioner and the State of this decision.
To publish this decision and 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 27 day of the month of February in the year 2002. (Signed) Juan Méndez, President; Marta Altolaguirre, First Vice-President; José Zalaquett, Second Vice-President; Commissioners: Robert K. Goldman and Clare K. Roberts.
Julio Prado Vallejo, of Ecuadorian nationality, did not take part in
the discussion of this case in accordance with the Article 17 of the
Commission's Rules of Procedure.
The new Rules of Procedure of the Inter-American Commission on Human
Rights entered into force on May 1, 2001.
Article 3 of the Regulations for the Handling of Public Funds
Allocated for Confidential or Secret Expenses, in force at the time
the events took place, provided that: "funds for confidential
or secret expenses shall be allocated only to the budgets of the
Ministries of Government and Police and National Defense".
Communication of 9 November 1999 from the petitioner.
In the complaint he presented to the Commission on November 9, 1999,
the petitioner affirmed that the “investigation had been ordered
against him for not having withheld taxes payable by the service
providers concerned and for destroying original documents or
instruments of the national government and public authorities.”
Communication of 9 November 1999 from the petitioner.
Article 254(1) of the Code of Criminal Proceedings, in force when
the acts in question occurred, provides: "If, when the order
for a full trial is issued, the accused is at-large, the judge
having issued the order shall suspend the full-trial stage until the
accused is apprehended or presents himself voluntarily.
For as long as the accused remains at-large, the order for a
full trial shall not be executed, and he shall be notified
personally of the order at such time as he presents himself or is
Inter-American Court of Human Rights, Velásquez
Rodríguez, Preliminary Objections, Judgment of 26 June 1987,
Series C , Nº 1, para. 88.
In its response of 10 August 2000, the State indicated that
resolution of the case initially brought before domestic courts
against the petitioner is still pending.
The State also indicated that the petitioner would be
entitled to appeal and to obtain a review of the judgment eventually
reached in the criminal proceedings that have been brought against
Inter-American Court of Human Rights, Velásquez
Rodríguez, Judgment of 29 July 1988, Series C and D Nº 4, para.
Report Nº82/98, Gustavo A. López Gómez, Annual Report 1998, p.
21; Report Nº 93/01, Alberto Dahik Garzozi, Annual Report 2001, p.
30. Report Nº 43/99,
Alan García Pérez, Annual Report 1998, p. 18.
European Court H.R., Albert and Le Compte v. Belgium, February 10,
1983, Series A, Nº 58, para. 32.