HERNÁNDEZ ALVARADO ET AL.
On May 7, 2001, the
Inter-American Commission on Human Rights (hereinafter “the
Inter-American Commission” or “the IACHR”) received a petition
lodged by Joaquín Hernández Alvarado, Marlon Loor Argote, and Hugo
Lara Pinos, toether with their attorney Ronald Game Intriago
(hereinafter “the petitioners”), all Ecuadorian nationals.
The petition alleges that the Republic of Ecuador (hereinafter
“Ecuador”) has incurred international responsibility by virtue of
the excessive and unwarranted attack that members of the National Police
made upon the petitioners on May 22, 1999, and for the police courts’
delay in prosecuting and punishing those to blame for the attacks.
allege that the facts denounced constitute violations of various
provisions of the American Convention on Human Rights (hereinafter
“the American Convention”): the right to humane treatment (Article
5); the right to a fair trial (Article 8); and the right to judicial
protection (Article 25). They
further allege that all the admissibility requirements set out in the
Convention have been satisfied. The
Ecuadorian State responded to the petition asking that it be declared
inadmissible on the grounds that the remedies under domestic law had not
the merits of the case, in this report the IACHR concludes that the
petition is admissible as it meets the requirements set forth in
articles 46 and 47 of the American Convention.
The Inter-American Commission, therefore, has decided to notify
the parties of its decision and will proceed with its analysis of the
merits of the allegation of violation of Articles 1(1), 5, 8 and 25 of
the American Convention.
BY THE COMMISSION
On May 7, 2001, Mr.
Joaquín Hernández Alvarado, Mr. Marlon Loor Argote, and Mr. Hugo Lara
Pinos sent a communication to the Inter-American Commission, the
pertinent parts of which were forwarded to the State on July 3, 2001. The latter was given 60 days in which to submit its
observations. The State did
not reply to that communication. On
September 25, 2001, the Commission again asked the State to supply
information, giving it 30 days in which to do so.
The State’s response was received on November 28, 2001, and was
sent to the petitioners on December 18.
They were given 30 days to submit their comments.
The petitioners’ comments were received on January 5, 2002, and
were forwarded to the State.
PARTIES’ POSITIONS ON ADMISSIBILITY
The petition states that at approximately 8:00 p.m. on May 22,
1999, as they were riding in a car in Guayaquil, a group of National
Police officers attacked the petitioners with guns.
The attack lasted approximately ten minutes, and left two of the
petitioners wounded. Joaquín Hernández was shot in the back.
The petitioners were then thrown to the ground and handcuffed.
All the while they were subjected to more physical and verbal
abuse. They were then taken to the model police station, where the
mistreatment continued for almost three hours, as the police kicked and
They point out that later the police made their apologies.
The petitioners allege that the police said that the petitioners
were attacked by mistake, in an operation led by Second Lieutenant
Freddy Osorio. Among those
making apologies to Mr. Hernández were the Police Chief, the Governor
of Guayaquil Province, and the then President of the Republic Jamil
As for the exhaustion of the remedies under domestic law, the
petitioners point out that the State did not respond, within the
prescribed time period, to the petitioners’ request in the matter of
compensation for damages and injuries, which the petitioners describe as
“positive administrative silence.”
They point out that there are no rules in force in Ecuador’s
legal system that they could invoke to require the State to act upon its
tacit acknowledgment of blame.
As for the investigation and punishment of those responsible, the
petitioners point out that although a case has been in the police courts
since June 1999, police jurisdiction is not the proper forum for
prosecution of the likely guilty parties.
They further contend that there has been an unwarranted delay in
rendering judgment in those police tribunals, as well as a number of
The State answers
the petition by asking the Commission to declare the present case
inadmissible on the grounds that the remedies under domestic law have
not been exhausted. The
State contends that because the Article 46 requirement has not been
satisfied, no further action can be taken on the petition.
11. The State also argues that a criminal case is now being prosecuted in the police courts, into the events that occurred on May 22, 1999. That case has progressed smoothly since it was instituted on June 17, 1999, and is presently at the intermediate phase. It adds that while the proceedings in that case have not yet ended, the courts will still have to decide it on the basis of the law and that such a court ruling is the proper way to resolve the petitioners’ situation.
As for the
unwarranted delay that the petitioners allege, the State contends that
there is no such delay, as only two years have passed.
The State argues that the case is a complicated one.
It further contends that the interested parties have failed to
cooperate and have even deliberately obstructed the proceedings, causing
delays for which the State cannot be blamed. The State points out that the case has taken this much time
because there are so many defendants, the case file is so large and the
evidence and testimony being offered is so extensive.
Finally, the State
points out that the petitioners had full access to the courts and at no
time were prevented from exercising their right to be heard by the
competent bodies. Based on
these arguments, the State requests that the petition be filed
The Inter-American Commission’s competence
ratione personae, ratione materiae, ratione temporis and ratione
Under Article 44 of the American Convention, the petitioner is
entitled to lodge petitions with the IACHR.
The alleged victim named in the petition is an individual whose
rights, under the American Convention, Ecuador pledged to respect and
ensure. As for the
State, Ecuador has been a State party to the American Convention since
December 28, 1977, the date on which the respective instrument of
ratification was deposited. The
Commission, therefore, is competent ratione
personae to examine the petition.
The Commission is competent ratione
loci to hear this petition, since it alleges violations of rights
protected in the American Convention, said to have occurred within the
territory of a State party to the Convention.
The Commission is also competent ratione
temporis because the obligation to respect and ensure the rights
protected in the American Convention was already binding upon the State
at the time the events alleged in the petition occurred. Finally, the
Commission is competent ratione
materiae, because the petition denounces violations of human rights
protected by the American Convention.
Other admissibility requirements
Exhaustion of the remedies under domestic law
point out that the police courts are not the proper jurisdiction in
which to seek redress of the allegedly violated rights.
They also argue that, separate from the forum question, is the
issue of the national courts’ unwarranted delay in rendering a
judgment on the case: two years have passed since the proceedings got
underway, and no final judgment has been delivered.
The Ecuadorian State points out that the remedies under
domestic law have not been exhausted and that the proceedings in the
police tribunals continue on course.
It also argues that there is no unwarranted delay, considering
the complexity of the case, the lack of cooperation from the petitioners
and the workload that the case represents for the courts.
into an analysis as to whether there was an un warranted delay in the
present matter, the Inter-American Commission is of the opinion that the
special jurisdictions, like those of the military or the police, are not
adequate to determine reparations when there have been human rights
violations at the national level. In
this regard both the Court and the Inter-American Commission have
pointed out at different times, that these special jurisdictions do not
constitute an appropriate forum to investigate, judge and punish human
rights violations presumably committed by members of the public security
Based on the
foregoing, the conclusion is that because the forum being used is not
only inadequate but also contrary to the Convention itself, the
petitioners need not exhaust the remedies under domestic law, since the
remedies indicated by the State in its response are not effective to
protect the rights whose violation is alleged.
Period for submission of the petition
In the case of the
petition under consideration, the Commission has concluded that the
petitioners are exempt from the rule requiring exhaustion of the
remedies under domestic law; the Commission must determine whether the
petition under study was submitted within a reasonable time.
The Commission notes that the events occurred in May 1999 and the
criminal case was instituted on June 17, and is now in its intermediate
phase. In other words, the
petitioner submitted the petition to the Commission on May 7, 2001,
almost two years after the criminal case was instituted.
The Commission concludes that the petition was presented within a
reasonable period, in keeping with Article 32 of its Rules of Procedure.
Duplication and res judicata
There is nothing in
the case file to indicate that this matter is pending with another
international arrangement for settlement or that it was previously
decided by the Inter-American Commission.
The IACHR therefore concludes that the exceptions allowed under
Article 46(1)(d) and in Article 47(d) of the American Convention do not
Characterization of the facts alleged
considers that if true, the facts alleged would tend to establish facts
that constitute violations of the rights guaranteed in articles 5, 8 and
25 of the American Convention.
Commission concludes that it is competent to take up the merits of this
case and that the petition is admissible under articles 46 and 47 of the
American Convention. Based
on these arguments of fact and of law, and without prejudging the merits
of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare the present case admissible inasmuch as it concerns
alleged violations of the rights protected under articles 5, 8 and 25 of
the American Convention.
To notify the parties of this decision.
To proceed with the analysis of the merits of the case, and
To publish this decision and include it in the Commission’s
Annual Report to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., on the 27th day of the month of
February in the year 2002. (Signed)
Juan Mendez, President; Marta Altolaguirre, First Vice-President;
José Zalaquett, Second Vice-President; Commissioners:
Robert K. Goldman and Clare K. Roberts.
In keeping with Article 17 of the Commission’s Rules of Procedure,
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate
in the discussion of this case.
See, for example, IACHR Report Nº 64/01 case 11.712, Leonel de Jesús
Isaza Echeverry et.al. (Colombia) April 6, 2001 p. 22.
See also Inter-American Court of Human Rights, Durand and
Ugarte case, Judgment of August 16, 2000, p. 117.
Inter-American Court of Human Rights, Cesti Hurtado case
judgment of September 29, 199, p. 151.
See also IACHR, REPORT ON THE SITUATION OF HUMAN RIGHTS IN
CHILE (September 27, 1985), pp. 183-185;
IACHR, ANNUAL REPORT 1996,
IACHR, REPORT ON THE SITUATION OF HUMAN RIGHTS IN ECUADOR
IACHR, REPORT ON THE SITUATION OF HUMAN RIGHTS IN BRAZIL, pp.