REPORT Nº 110/01*
CARLOS ANDRADE BENÍTEZ
The Comisión Ecuménica de Derechos Humanos (“CEDHU”)
(hereinafter “the petitioner”) submitted a petition to the
Inter-American Commission on Human Rights (hereinafter “the
Commission” or “the IACHR”) against the Republic of Ecuador
(hereinafter “the State”) in which it alleged the violation of the
following rights protected by the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”): the
right to humane treatment (Article 5), the right to personal liberty
(Article 7), the right to a fair trial (Article 8), and the right to
judicial protection (Article 25), in violation of the obligations set
forth in Article 1(1), to the detriment of Mr. Pompeyo Carlos Andrade Benítez.
The parties reached a friendly settlement agreement in this case on
August 15, 2001. This report contains a brief presentation of the facts
and the text of the agreement reached, in keeping with Article 49 of the
According to the complaint, on September 18, 1996, Mr. Pompeyo
Carlos Andrade Benítez was illegally deprived of his liberty, when
detained without the constitutionally-required arrest warrant and held
incommunicado for one week. The
detention was under the pretext of investigations by INTERPOL in Guayas, at the request of judicial assistance
provided by the Public Ministry, Office of the Special Prosecutor for
Drug-related Crimes of Panama, Republic of Panama; the request was made
under Article 7 of the 1988 Vienna Convention.
The petitioner argues that during his detention, Mr. Andrade was
not allowed to have the counsel of his attorney or the presence of his
family members, as he was confined to a small room with music playing full
blast day and night. After
five days in this situation of psychological torture and incommunicado
detention, a statement was taken from him, in disregard outside of the
proper procedure and without the presence of an attorney.
The petitioner adds that the request for judicial assistance did
not mention Mr. Andrade or the company APOLINAR PESCA SECA, S.A., which he
had established 15 years earlier; during that entire time he worked
exporting dried seafood products. In addition, the petitioner indicated
that Judge Grace Campoverde did not specify the indicia that provided the
grounds for the preventive arrest warrant, as required by Article 177 of
the Code of Criminal Procedure, a judicial act that violated Mr.
Andrade’s legitimate right to defense, which is enshrined in the
Constitution of Ecuador.
In addition to the foregoing, the petitioner argues that the
representative of the Public Ministry, Justo Loor Chóez, issued an
opinion in which he refrained from indicting Mr. Andrade, precisely
because prior to the indictment there was no evidence whatsoever linking
him directly or indirectly to the object of the criminal proceedings..
The petitioner recounts that after 10 months of detention, the 3rd
Criminal Law Judge of Guayas, by resolution of July 22, 1997, revoked the
preventive arrest warrant issued for Mr. Andrade.
On September 5, 1997, the Office of the Prosecutor issued a ruling
in which it ratified the decision not to indict Mr. Andrade, and later,
the same Judge Grace Campoverde, who handed down the ruling that he had
been unlawfully and arbitrarily detained, dismissed the charges against
him, without prejudice. Nonetheless,
despite that resolution, Mr. Andrade was not released; accordingly, he
recurred to the President of the Superior Court of Justice of Guayaquil,
Mr. Milton Moreno Aguirre, seeking his release pursuant to Article 458 of
the Code of Criminal Procedure. Nonetheless,
the Court denied the motion, maintaining that these types of proceedings
have procedures spelled out in the law and that according to those
procedures, there was no violation of the law.
For his part, however, the petitioner argues, the terms and time
limits established by the law have been violated.
Furthermore, the petitioner indicates that his brief containing the
amparo motion is not to be found
in the Supreme Court and that all judicial remedies in the Republic of
Ecuador to seek his release have been exhausted.
PROCESSING BEFORE THE COMMISSION
On May 14, 1998, the Commission sent the respective notes to the
State and to the petitioner. On May 22, 1998, the petitioner addressed the
Commission once again expressing that it had not yet secured Mr.
Andrade’s release, even though charges against him were dismissed by the
court. On June 24, 1998, the petitioner notified the Commission that
Mr. Andrade was released on June 16, 1998, as a result of the request for
information by the Commission to the Government of Ecuador as to his
situation. The petition
followed the course set out in the Rules of Procedure.
On March 5, 1999, the Commission placed itself at the parties’
disposal to pursue a friendly settlement.
On July 7, 1999, CEDHU informed the Commission that an agreement
had been reached to sign a friendly settlement agreement in relation to
Pompeyo Carlos Andrade Benítez. On
May 21, 2001, the petitioner informed the Commission, inter
alia, that the Office of the Attorney General had resolved to postpone
any agreement indefinitely. The
Commission received a communication from the Government of Ecuador
containing a list of cases in which friendly settlement was to be pursued,
including this one. The
friendly settlement agreement was signed on August 15, 2001, in the
presence of Commissioner Marta Altolaguirre, member of the IACHR and
rapporteur for Ecuador, who had traveled to Quito to facilitate the
agreement. The parties asked the Commission to ratify this friendly
settlement agreement in its entirety and to supervise its implementation.
FRIENDLY SETTLEMENT AGREEMENT
The friendly settlement agreement signed by the parties reads as
Ecuadorian State, through the Office of the Attorney General, with a view
to promoting and protecting human rights and given the great importance of
the full observance of human rights at this time for the international
image of our country, as the foundation of a just, dignified, democratic,
and representative society, has decided to take a new course in the
evolution of human rights in Ecuador.
Office of the Attorney General has initiated conversations with all
persons who have been victims of human rights violations, aimed at
reaching friendly settlement agreements to provide reparations for the
Ecuadorian State, in strict compliance with the obligations it acquired
upon signing the American Convention on Human Rights and other
international human rights law instruments, is aware that any violation of
an international obligation that has caused damages triggers the duty to
make adequate reparations--monetary reparations and criminal punishment of
the perpetrators being the most just and equitable form. Therefore the
Office of the Attorney General and Mr. Pompeyo Carlos Andrade Benítez
have reached a friendly settlement, pursuant to the provisions of Articles
48(1)(f) and 49 of the American Convention on Human Rights and Article 41
of the Rules of Procedure of the Inter-American Commission on Human
following persons were present at the signing of this friendly settlement
For the first party, Dr. Ramón Jiménez Carbo, Attorney General of
the State, as indicated in his appointment and certificate of office,
which are attached as qualifying documents;
For the second party Mr. Pompeyo Carlos Andrade Benítez, with
citizen identification number 180007056-5, which is attached hereto as a
STATE RESPONSIBILITY AND ACCEPTANCE
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mr. Pompeyo Carlos Andrade Benítez
recognized in Article 8 (right to a fair trial), Article 7 (right to
personal liberty), and Article 25 (right to judicial protection), in
relation to the general obligation contained in Article 1(1) of the
American Convention on Human Rights and other international instruments,
considering that the violations were committed by State agents, which
could not be disproved by the State, giving rise to State responsibility.
the above, the Ecuadorian State accepts the facts in case Nº 12.007
before the Inter-American Commission on Human Rights and undertakes the
necessary reparative steps to compensate the victims, or their successors,
for the damages caused by those violations.
view of the foregoing, the Ecuadorian State, through the Attorney General,
as the sole judicial representative of the Ecuadorian State, pursuant to
Article 215 of the Constitution of Ecuador, enacted in Official Register Nº
1 and in force since August 11, 1998, is awarding Mr. Pompeyo Carlos
Andrade Benítez a one-time compensatory payment in the amount of twenty
thousand US dollars (US$ 20,000), to be paid from the National Budget.
compensation covers the consequential damages, loss of income, and moral
damages suffered by Mr. Pompeyo Carlos Andrade Benítez, as well as any
other claims that Mr. Pompeyo Carlos Andrade Benítez or his family
members may have regarding the subject of this agreement, under domestic
and international law, and is chargeable to the National Budget. To this
end, the Office of the Attorney General will notify the Ministry of
Economy and Finance, for it to carry out this obligation.
PUNISHMENT OF THE PERSONS RESPONSIBLE
Ecuadorian State pledges to bring civil and criminal proceedings and
pursue administrative sanctions against those persons who are alleged to
have participated in the violation in the performance of State functions
or under the color of public authority.
Office of the Attorney General pledges to encourage the State Attorney
General, the competent judicial organs, and public agencies or private
institutions to contribute legal evidence to determine the liability of
those persons. If admissible, the prosecution will be subject to the
constitution and laws of the Ecuadorian State.
RIGHT TO SEEK INDEMNITY
Ecuadorian State reserves the right to seek indemnity, pursuant to Article
22 of the Constitution of the Republic of Ecuador, from those persons
found responsible for human rights violations through a final and firm
judgment handed down by the country’s courts or when administrative
liability is found, in keeping with Article 8 of the American Convention
on Human Rights.
TAX EXEMPTION AND DELAY IN COMPLIANCE
payment made by the Ecuadorian State to the other party to this agreement
is not subject to any current or future taxes.
Ecuadorian State, through the Office of the Attorney General, agrees to
report every three months to the Inter-American Commission on Human Rights
on compliance with the obligations assumed by the State in this friendly
keeping with its consistent practice and obligations under the American
Convention, the Inter-American Commission on Human Rights will oversee
compliance with this agreement.
compensatory damages that the Ecuadorian State is awarding to Mr. Pompeyo
Carlos Andrade Benítez are provided for in Articles 22 and 24 of the
Constitution of the Republic of Ecuador, for violation of the
constitution, other national laws, and the standards in the American
Convention on Human Rights and other international human rights
friendly settlement is entered into based on respect for the human rights
enshrined in the American Convention on Human Rights and other
international human rights instruments and on the policy of the Government
of Ecuador to respect and protect human rights.
NOTIFICATION AND CONFIRMATION
Pompeyo Carlos Andrade Benítez specifically authorizes the Attorney
General to notify the Inter-American Commission on Human Rights of this
friendly settlement agreement, so that the Commission may confirm and
ratify it in its entirety.
parties to this agreement freely and voluntarily express their conformity
with and their acceptance of the content of the preceding clauses and
state for the record that they hereby end the dispute before the
Inter-American Commission on Human Rights on the international
responsibility of the State for violating the rights of Mr. Pompeyo Carlos
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
Commission determined that the foregoing friendly settlement agreement is
compatible with the provisions of Article 48(1)(f) of the American
Commission values the signing of a friendly settlement agreement in the
terms of the American Convention, on which the State and petitioner
IACHR will continue to monitor compliance with the commitment assumed by
Ecuador regarding the proceedings to be brought against the persons
implicated in the events alleged.
IACHR ratifies that the option of friendly settlement provided for in the
American Convention makes it possible to terminate individual cases in a
non-contentious manner, and has proven, in cases regarding several
countries, to be an important procedure for resolving alleged violations
that can be used by both parties (petitioner and State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To certify compliance by the State with the payment of US$ 20,000
to the petitioner in this case as compensation.
To remind the State that it must fully implement the friendly
settlement agreement, bringing judicial proceedings against the persons
implicated in the violations alleged.
To continue to monitor and supervise compliance with each and every
one of the points of the friendly settlement agreement, and, in this
context, to remind the State, through the Office of the Attorney General,
of its commitment to report to the IACHR every three months on compliance
with the obligations assumed by the State under this friendly settlement.
To make this report public and 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., October 11,
2001. (Signed): Claudio Grossman, President; Juan E. Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President; Commissioners Hélio
Bicudo, Robert K. Goldman, and Peter Laurie.
Commissioner Julio Prado Vallejo, of Ecuadorian nationality, did not
participate in the discussion of this case, in keeping with Article
17 of the Commission’s Rules of Procedure.
INTERPOL is the International Criminal Police Organization.
Article 22, section 19, letter E, Constitution of Ecuador, which
guarantees the right to defense.