RODRIGO TOLEDO ECHEVERRÍA
On June 8, 2001, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition dated May 9,
submitted by Mr. Edison Rodrigo Toledo Echeverría, (hereinafter, “the
petitioner”), against the Republic of Ecuador (hereinafter “the
State” or “Ecuador”), in which he alleges the international
responsibility of the Republic of Ecuador, as representative of the
Ecuadorian Judiciary, for violation of the guarantees recognized in
Article 24 (Right to Equal Protection) of the American Convention on
Human Rights (hereinafter the “Convention” or the “American
Convention”). For its
part, the State requested the Commission to find the petition
inadmissible for failure to meet the admissibility requirements
contained in the Convention, inasmuch as there has been no violation of
the rights enshrined in the Pact of San Jose, and because the Commission
is not an appellate court or a fourth instance.
The petitioner, Mr.
Edison Toledo, a petroleum engineer, filed a complaint,
In this report the
Commission examines the information presented in the light of the
American Convention and concludes that the instant petition does not
meet the admissibility requirements set down in the Convention and
decides to declare it inadmissible in accordance with Article 47 of the
American Convention and Article 34 of the Rules of Procedure of the
IACHR, transmit it to the parties, makes it public, and include it in
the Annual Report.
PROCESSING BY THE COMMISSION
On July 9, 2001, the Commission forwarded the pertinent portions
of the petition to the Government of Ecuador, so that it might present
its position, and gave it 60 days to reply.
The State submitted a detailed reply on November 15, 2001, and
the pertinent parts were transmitted to the petitioner for comments. On December 21, 2001, the petitioner sent the
Commission his comments to the reply of the Government.
The processing of the comments of the parties continued in
accordance with the Commission’s Rules of Procedure.
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioner, Mr. Edison Toledo, began to work for the
Consortium CEPE-TEXACO on January 1, 1979.
When the consortium ceased to exist the petitioner went straight
to PETROAMAZONAS, a subsidiary of PETROECUADOR, and later he joined
PETROPRODUCCION. The petitioner alleges that in the second half of 1993 his
employer relieved him of specific duties, in spite of his reiterated
claims, for which reason he considered himself dismissed without due
Under the Unified Collective Labor Agreement signed on May 9,
1994, by Petroproducción and the National Single Central
Committee of Petroproducción Workers ”Petroproducción shall
not relieve a worker of his duties for any reason; otherwise it shall be
considered dismissal without due notice and the Company shall pay the
compensation provided for in Article 12 herein and in the Labor Code.”
According to the petitioner, Petroproducción relieved him
of his duties, which were transferred to his subordinate, Mr. Galo
Vicente Arévalo. Petroproducción also removed his name from the
attendance roll, for which reason he sued the company for dismissal
without due notice, and sought payment of compensation in accordance
with the aforementioned labor agreement then in force.
On August 2, 1994, the petitioner requested the Manager of Petroproducción
that he be given his severance pay on account of his dismissal, and said
that he also wished to hand over his effects.
After 15 days he had received no reply.
On September 2, 1994, at the request of Mr. Toledo, the Inspector
of Labor summoned the Manager of Petroproducción in order to pay
the benefits and the respective compensation, but he did not appear.
On September 5, 1994, the petitioner filed suit Nº 278/1994
against his employer, Petroproducción, and joint and severally
against Mauro Dávila, as Manager, for dismissal without due notice and
for failure to pay him his respective compensation and benefits.
In a summary oral proceeding the petitioner sued his
then-employer, Petroproducción, and set the amount of his claim at one
hundred forty-eight million sucres (S148,000,000) not counting interest.
For its part, Petroproducción denies having dismissed Mr. Toledo
without due notice, and claims that he voluntarily and unilaterally
decided to abandon his job for more than three days.
On January 7, 1997, the Third Court for Labor Matters in and for
Pichincha (Quito) partially rejected the petitioner’s claim because it
did not find that he had been dismissed without due notice, and it
ordered payment only of wages and leave.
On April 3, 1997, the Fourth Chamber of the Superior Court of
Justice examined the appeal filed by the petitioner and upheld the
judgment of the lower court, ordering Petroproducción to pay the
petitioner the amount of six million eight hundred eighty-five thousand
seven hundred seven sucres and 40/100 (S 6,885,707.40) in
severance pay plus the corresponding interest.
On November 29, 2000, the First Chamber for Labor and Social
Matters of the Supreme Court of Justice rejected the cassation appeal,
with the argument that the petitioner should first have exhausted the
remedies under the administrative jurisdiction, in other words, he
should have sought the intervention of the Worker-Employer Committee in
the dispute in accordance with Article 54 of the First Unified
Collective Labor Agreement. Furthermore, the cassation judgment states
that the other provisions invoked by the petitioner in connection with
the dismissal without due notice were not violated.
According to the petitioner, the aforesaid Worker-Employer
Committee had not been created when he filed his suit on September 5,
1994, but that, precisely because of his complaint, it was created
eighteen days later on September 23, 1994.
According to the petitioner, the judgment affirms that an
essential procedural requirement was overlooked (omission to request the
intervention of the Worker-Employer Committee in the dispute).
The petitioner holds that such an affirmation is inadmissible in
the light of several decisions of the Supreme Court of Justice.
Moreover, the Chamber itself had rejected such an opinion due to the
fact that it regards it as a mere formality, and failure to observe it
has no effect on the guarantees of due process, and, furthermore, that
provision in the agreement neither makes it a condition for the
employee, nor obligates him, as a prior step to his judicial complaint,
to submit the case to the aforesaid entity for hearing and resolution.
With respect to the obligation to take one’s case first to the
Worker-Employer Committee, the petitioner says that the same Chamber of
the Supreme Court of Justice, in the action brought by Mrs. María de
Lourdes Cobo against Petroproducción, a copy of which he had attached
to his petition, the Supreme Court had determined that the standing
obligation under the above-mentioned collective agreement to recourse to
the Worker-Employer Committee was merely a formality and failure to
observe it did not affect the guarantees of due process.
According to the petitioner, such contradictory rulings on the
same matter fully demonstrate that the right to equal protection has
been infringed by Ecuador. Based
on these arguments, the petitioner requests the Commission to find the
State responsible for violation of the right to equal protection
(Article 24) enshrined in the American Convention on Human Rights in
contravention of the obligations contained in Article 1(1) thereof.
The petitioner also filed a complaint for damages against the
Justices of the First Chamber for Labor and Social Matters of the
Supreme Court of Justice who took part in proceedings in Case Nº
278/1994 because he regarded their decision as biased and unfair.
This complaint for damages remains pending.
Position of the State
In its letter of November 15, 2001, the Government transmits the
official response, Nº 20183 of October 10, 2001, and maintains that the
competent tribunals heard the instant case and reached a decision on it
in accordance with the law, and that this decision, regardless of
whether it was favorable or unfavorable, was appropriate for resolving
the situation of the petitioner. As the Inter-American Court of Human
Rights has found, “the
mere fact that a domestic remedy does not produce a result favorable to
the petitioner does not in and of itself demonstrate the inexistence or
exhaustion of all effective domestic remedies. For example, the
petitioner may not have invoked the appropriate remedy in a timely
Based on the foregoing, it follows that in a judicial proceeding
conducted in accordance with the guarantees of due process, as in the
instant case, the fact that the judgment is unfavorable in no way
implies a violation of the rights enshrined in the American Convention,
if the judgment is the result of a fair trial, as was the case in the
labor proceeding in the Ecuadorian Courts.
The Government of Ecuador considers that the petitioner, due to
the fact that he disagrees with the judgments rendered by the domestic
courts, seeks to use the Commission as a “fourth instance”, and it
draws attention to the fact that those judgments partially accept the
claims of Mr. Toledo, and differ only on the amount of the compensation
sought. Therefore, the petitioner considers that the rulings of the
courts were biased and not in accordance with the law.
The function of the Commission is to ensure observance of the
obligations of the states parties under the Convention. However, it
cannot act as an appellate court to examine alleged errors of law or of
fact that domestic courts might have committed in their jurisdiction.
Therefore, the inconformity of the petitioner with the judicial
rulings issued by the competent judges on matters within their
jurisdiction, is not grounds for the Commission to review or reverse
such rulings because the Commission is not an appellate court and it is
not for it to nullify judicial decisions, but rather to ensure that the
states provide their citizens with justice, strictly in accordance with
the requirements of due process of law.
For the Commission to act otherwise
would pervert the inter-American system for protection of human
The Ecuadorian State considers that the petitioner seeks to come
before the Commission so that the latter might review the proceedings of
the tribunal and declare them void if there are errors of fact or of law
in its decision because he regards the ruling as biased and not in
accordance with the law. Ecuador
reiterates that all the judicial guarantees were preserved and that the
proceedings were conducted in accordance with the law, and, therefore,
there cannot have been any violation of the rights protected by the
The State says that the Inter-American Court of Human Rights in
the Suárez Rosero Case found that "it
can not nor should not discuss or judge the character of the crimes
attributed to the alleged victims […] as that is reserved to the
appropriate criminal court. The Court is called upon only to decide on
concrete violations of the provisions of the Convention, concerning any
persons and independent of the legal situation that applies to them or
of the legality or illegally of their conduct from the perspective of
the [...] national law" in question.
According to the State, the Commission should abstain from
analyzing this situation and instead determine if there have been
violations of the rights enshrined in the Convention.
Thus, the State of Ecuador bases its position on the findings of
the Inter-American Court of Human Rights in similar cases: “What is decisive is whether a violation of the
rights recognized by the Convention has occurred with the support or the
acquiescence of the government, or whether the State has allowed the act
to take place without taking measures to prevent it or to punish those
The State of Ecuador considers that under Article 47 of the
American Convention, the Commission should declare the instant petition
inadmissible inasmuch as it does not state facts that tend to establish a
violation of the rights guaranteed by that international instrument.
Commission’s competence ratione
personae, ratione loci, and ratione
The petitioners are entitled under Article 44 of the American
Convention to lodge petitions with the Commission.
The petition names Mr. Edison Rodrigo Toledo Echeverría as the
alleged victim in accordance with Article 1(2) of the American
Convention. The accused
State, the Republic of Ecuador, ratified the American Convention on
December 28, 1977. Therefore,
the Commission is competent, ratione
personae, to examine
The alleged violations were committed within the jurisdiction of
the Republic of Ecuador, therefore, the Commission is competent, ratione
The alleged violations were committed after the ratification of
the American Convention on December 28, 1977, therefore, the Commission
is competent, ratione temporis.
The instant petition alleges violations of rights set forth in
the American Convention, therefore the Commission is competent, ratione
Other Admissibility Requirements
Exhaustion of domestic remedies
All the remedies under domestic law were exhausted with the
judgment of the Supreme Court of Justice of November 29, 2000, in
accordance with Article 46(1)(a) of the Convention.
Since the petition was presented to the Commission on May 29,
2001, six months after the judgment of the Supreme Court of Justice, it
is within the period stipulated in Article 46 (1)(b) of the Convention.
Duplication of proceedings and res
There is no prior proceeding connected with the aforesaid
petition before the Commission, nor is it pending
in another international proceeding for settlement.
Nature of the alleged violations
The instant case concerns an alleged violation of Article 24 of
the Convention. The
petitioner’s case is against the three Justices of the First Chamber
for Labor and Social Matters of the Supreme Court of Justice, for
allegedly having deprived him of the right to equal protection of the
law, set forth in Article 24 of the Convention.
The essence of the petitioner’s complaint is that the Supreme
Court rejected his complaint based on the reasoning that first, he
should have sought the intervention of the Worker-Employer Committee in
the dispute, in the manner prescribed in Article 54 of the First
Unified Collective Labor Agreement,
whereas in another case brought against Petroproducción, the
same Court held that, with
respect to the obligation to go first before the Worker-Employer
Committee, that such a requirement was a mere formality and failure to
observe it did not affect, in any way, the guarantees of due process.
Upon closer analysis however, the two cases do not appear to
present the same issue to the Supreme Court, that of compensation for
dismissal without due notice. In
the petitioner’s case, the Supreme Court states that Mr.
Toledo decided voluntarily and at his own risk to absent himself
from his place of work from August 25, 1994 onward, saying that he has
been without functions for more than half a year.
Further the Court notes that:
The Commission agrees with the State that the petitioner is
seeking to use the Commission as a “fourth instance” to review the
judgment of the Ecuadorian Supreme Court in his case.
The consistent jurisprudence of the Commission has been that it
is not within its province to substitute its own assessment of the facts
for that of the domestic courts, and as a general rule, it is for these
courts to assess the evidence before them.
The Commission’s task is to ascertain whether the proceedings,
in their entirety, were fair. As
the Commission stated in its leading case on this issue:
Commission is competent to declare a petition admissible and rule on its
merits when it portrays a claim that a domestic legal decision
constitutes a disregard of the right to a fair trial, or if it appears
to violate any other right guaranteed by the Convention. However, if it
contains nothing but the allegation that the decision was wrong or
unjust in itself, the petition must be dismissed under this formula. The
Commission's task is to ensure the observance of the obligations
undertaken by the States parties to the Convention, but it cannot serve
as an appellate court to examine alleged errors of internal law or fact
that may have been committed by the domestic courts acting within their
As in the Marzioni case, in which the petitioner also
alleged denial of equality before the law, the Commission considers that
the petitioner has not been able to supply information to prove that
there was no “objective and reasonable justification” for the
different treatment between the two judgments of the Ecuadorian Supreme
Court. The fact that he was
not awarded the same amount as the other person does not, in itself,
The Commission agrees with the State that the petitioner had his
day in Court and that the fact that the judgment is unfavorable in no
way implies a violation of the rights enshrined in the American
Convention. In the view of
the Commission, the petitioner has failed to meet his burden of showing
that there was no objective and reasonable justification for the
different treatment accorded the two cases.
Based on the foregoing, the Commission finds that it is not
competent to make a decision on the merits of the matter and, therefore,
abstains from analyzing it because the facts alleged in the petition do
not characterize a violation of the rights enshrined in the American
Based on the factual and legal arguments given above, the
Commission finds that the petition is inadmissible in accordance with
the requirements contained in Article 47(b) of the American Convention
because it does not state facts that constitute a violation of any of
the rights protected by that Convention.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the petition inadmissible inasmuch as it does not
concern a violation of the human rights protected by the Convention.
2. To notify the parties of this decision.
3. To publish this decision 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
the city of Washington, D.C., on the 20th day of the month of
February in the year 2003. Signed:
President; Marta Altolaguirre, First Vice-President; José Zalaquett,
Second Vice-President; and Robert K. Goldman and Clare K. Roberts,
Julio Prado Vallejo, an Ecuadorian national, did not participate in
this case in keeping with Article 17(2)(a) of the Rules of Procedure
of the Commission.
The petitioner later dropped his claim against Mr. Mauro Dávila
because the latter stopped working for Petroproducción.
Inter-Am. Ct. H.R., Velásquez
Rodríguez Case, Judgment of July 29, 1988, para. 67.
supra Nº 3 para. 173; Godínez
Cruz Case, Judgment of January 29, 1989, para. 183; Gangaram
Panday Case, Judgment of December 4, 1991, para. 62.
Report Nº 39/96, Case 11.673, Marzioni (Argentina), October 15,
Id. para. 43.