ENRIQUE VALDERRAMA PEREA
On September 21, 1998, the Inter-American Commission on Human
Rights (hereinafter “the Inter-American Commission or “the IACHR”)
received a complaint from Jesús Enrique Valderrama Perea, a Colombian
citizen, in which he alleged that the Republic of Ecuador (“the
State”) had incurred international responsibility due to his being
held in preventive detention and the cruel treatment to which he had
been subjected at the time. The preventive detention was prolonged as a
result of the delay in the judicial proceedings. Mr. Valderrama is
currently in detention without a final decision having been issued in
The petitioner alleges that the facts denounced constitute a
violation of various provisions of the American Convention on Human
Rights (hereinafter the “American Convention”), including the
following: right to humane treatment
(Article 5); right to personal liberty (Article 7); right to a fair
trial (Article 8); right to compensation (Article 10); right to privacy
(Article 11); right to equal protection (Article 24), judicial
protection (Article 25) and obligation to respect rights (Article 1(1)).
He further claims to have fulfilled all the admissibility
requirements stipulated by the Convention.
As the State never responded to the letters of the Commission, it
has thereby tacitly waived its right to submit objections to the
admissibility of the present petition.
Without prejudging the merits, the IACHR concludes in this report
that the case is admissible, since it meets the requirements set forth
in Articles 46 and 47 of the American Convention.
Consequently, the Inter-American Commission has decided to notify
the parties of that decision and to continue with an analysis of the
merits regarding the alleged violation of Articles 1(1), 5, 7, 8, 10,
11, 24, and 25 of the American Convention.
PROCESSING BY THE COMMISSION
On September 21, 1998, Jesús Enrique Valderrama Perea submitted
a complaint to the Inter-American Commission, the pertinent parts of
which were transmitted to the State on January 25, 1999, along with
notice to the effect that it had 90 days to submit its observations.
No response from the State to that communication was ever
received. The petitioner
submitted additional information in letters received on February 16 and
March 27, 1999. On
September 19, 2001, the Commission reiterated its request for
information from the State, giving it a period of thirty days to
transmit that information. That
letter was never answered by the State either.
POSITIONS OF THE PARTIES ON ADMISSIBILITY
According to the petition, Mr. Valderrama was detained on May 2,
1996 in Quito, Ecuador, as he was boarding a plane to Bogotá, Colombia. He was detained by three individuals who did not identify
themselves or present an arrest warrant, and who beat and kicked him
before taking him to the offices of Interpol in Quito.
Once he arrived at Interpol, he was interrogated by Captain
Edmundo Mera, who asked him about his trip to Bogotá.
The petitioner replied that he had traveled to Ecuador to buy
gold for his family business in Colombia.
When he asked why he had been detained, Captain Mera told him
that he had been arrested for trafficking and that he would spend the
rest of his life in prison.
Subsequently, the petitioner was taken, by physical violence, to
a parking lot, where they pointed out a man and asked him if he was his
accomplice. When he did not
answer, they threatened to torture him.
He was then taken to the bathroom, where they made him get down
on his knees and then put thumb locks on him to which they tied a rope
to hang him from the ceiling, which ripped his arms.
He said that the police stood on his ankles to push his body down
while they hit him all over his body with clubs wrapped in cloth, and
demanded that he confess to the crimes they accused him of.
When he asked for water to drink, they gave him urine from the
toilets. Finally, police
officers Edmundo Mera and Mauro Vargas told him that they were taking
him to Guayaquil, that his parents were already at Interpol asking where
he was, and that if he confessed to his crimes nothing would happen to
In his petition dated of April 15, 1999, the petitioner informed
the Commission that he had been in detention for 24 months and that the
court hearing his case had not yet handed down a decision.
He further reported that on November 6, 1998, Public Prosecutor
No. 9 of the Guayas Criminal Court issued an opinion accusing him of
drug trafficking offenses, and that it had taken him over two years to
reach that conclusion.
The petitioner said that when he was first detained, he had asked
to speak with someone from his Embassy, but that Captain Mera had
responded that in that country (Ecuador) he had no rights.
The State failed to respond to any of the communications sent by
the Inter-American Commission or to give its views on the alleged facts.
Competence of the
Inter-American Commission ratione
personae, ratione materiae, ratione temporis y ratione loci
Under Article 44 of the American Convention, the petitioner is
authorized to lodge complaints with the IACHR.
The petition indicates that the alleged victim is a person, with
regard to whom Ecuador undertook a commitment to respect and ensure the
rights enshrined in the American Convention.
As far as the State is concerned, the Commission points out that
Ecuador has been a party to the American Convention since December 28,
1977, the date on which it deposited its instrument of ratification.
Consequently, the Commission is competent to examine the petition
The Commission is competent ratione
loci to consider the petition because it alleges violations of
rights protected under the American Convention which took place within
the territory of a state party to the Convention.
The IACHR is competent ratione
temporis, because the obligation to respect and ensure the rights
protected by the American Convention was already in force in the State
on the date on which the facts 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 requirements for admissibility of the petition
Exhaustion of domestic remedies
The petitioner reports that there was an unjustified delay in the
judicial proceedings in this case, since five years lapsed from the time
he was detained, during which time he was never informed of the
existence of a final judgment.
The State did not respond throughout the proceedings before the
IACHR. It never made any
reference to domestic remedies available in Ecuador, nor did it deny the
unjustified delay alleged by petitioner.
The Inter-American Commission observes that, in the case in
point, the State never argued failure to exhaust domestic remedies in
the six months that lapsed since the first communication sent by the
The Inter-American Court of Human Rights has reiterated that when
a State fails to present an objection based on lack of exhaustion of
domestic remedies, that State is presumed tacitly to be waiving its
right to this defense.
Therefore, the Inter-American Commission finds that the State has
waived its right to object to admissibility based on failure to exhaust
domestic remedies, since it did not present said objection either within
the legally established time period or at the opportunities available to
it during the proceedings.
Deadline for presentation
In the petition under consideration, the IACHR found that the
State tacitly renounced its right to present an objection based on lack
of exhaustion of domestic remedies.
Hence, the requirement established in Article 46(1)(b) of the
American Convention does not apply.
However, the requirements under the Convention regarding
exhaustion of domestic remedies and lodging of the petition within a
period of six months from the decision that exhausts domestic remedies
are independent of each other. As
a result, the Inter-American Commission must determine whether the
petition being examined was presented within a reasonable period of
time. On this point, the
IACHR notes that the petitioners argued that there was an unjustified
delay, but in order to apply this exception there must be a final
decision issued by the national courts.
On these grounds, the IACHR finds that the petition was presented
within a reasonable period of time.
c. Duplication of
procedures and res
The case file contains no information that could lead to a
determination that this matter is pending settlement in another
international procedure or that it has been previously studied by the
Inter-American Commission. Therefore,
the IACHR concludes that the exceptions set forth in Article 46(1)(d)
and in Article 47(d) of the American Convention are not applicable.
Nature of the alleged events
The Commission considers that if the alleged facts are proven to
be true, they will constitute violations of the rights guaranteed in
Articles 1(1), 5, 7, 8, 10, 11, 24, and 25 of the American Convention.
The Inter-American Commission concludes that it is competent to
examine this case and that the petition is admissible pursuant to
Articles 46 and 47 of the American Convention.
On the basis of the de
facto and de jure arguments set forth in this document, and without prejudice
to the merits of the petition,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible insofar as it refers to alleged
violations of rights protected in Articles 1(1), 5, 7, 8, 10, 11, 24,
and 25 of the American Convention.
To notify the parties of this decision.
To continue to examine the merits of the case; and
To publish this decision and include it in its Annual Report to
the OAS General Assembly.
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.
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate
in the examination of this case, pursuant to Article 17 of the
Commission’s Rules of Procedure.
See, for instance, the Inter-American Court of Human Rights, Case of
the Community of Mayagna (Sumo) Awas Tingni, Nicaragua, Decision on
preliminary objections of February 1, 2000, para. 53.
In that same decision, the Inter-American Court found that
“to present a valid opposition to the admissibility of a petition
… the State must specifically and opportunely
invoke the rule of lack of exhaustion of domestic remedies”
(emphasis in the original).