On May 7, 2001, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission or “the IACHR”)
received a complaint lodged by James Judge, a citizen of the United
States of America, in which he alleged that the Republic of Ecuador
(“the State”) had incurred international responsibility for failure
to pay him compensation for an unjustified delay in the judicial
proceedings on the part of the national courts of that State.
The petitioner alleged that the facts reported constituted a
violation of various provisions of the American Convention on Human
Rights (hereinafter referred to as the “American Convention”)
including the following: right
to a fair trial (Article 8); right to property (Article 21); and,
judicial protection (Article 25) in contravention of the obligations set
forth in Article 1(1). He
further stated that all the admissibility requirements stipulated in the
Convention had been fulfilled. The
State never answered the communications of the Commission, thereby
tacitly renouncing its right to file objections to the admission of this
Without prejudging the merits, the IACHR concludes in this report
that the petition is admissible, since it fulfills the requirements
stipulated in Articles 46 and 47 of the American Convention.
Consequently, the Inter-American Commission decides to notify the
parties of the decision and to continue with a merits examination of the
alleged violation of Articles 1(1), 8, 21, and 25 of the American
PROCESSING BY THE COMMISSION
On October 11, 1994, the petitioner submitted a petition to the
Commission regarding the discovery of certain archeological treasures,
claiming recognition of his rights thereto as established under
On March 20 and June 13, 1996, James Judge sent communications to
the Inter-American Commission in which he denounced violations of the
right to property and the right to judicial guarantees.
On August 16, 1996, the Commission sent a letter to the
petitioner informing him that it had decided not to admit the petition
because of failure to exhaust domestic remedies, since his case was
still pending before the Court of Constitutional Guarantees.
James Judge sent a communication to the Commission on March 27,
2001, in which he referred to the domestic remedies he had availed
himself of. On May 25,
2001, the Commission transmitted the pertinent parts of the
petitioner’s letter to the State, giving it a period of 30 days to
send the pertinent information. The
State never responded. On
September 19, 2001, the Commission addressed another request for a
response to the State, giving it a period of thirty days to submit the
information. The State
never responded to that communication either.
POSITIONS OF THE PARTIES ON ADMISSIBILITY
According to the petitioner, on May 23, 1967, the Casa
de la Cultura Ecuatoriana [House of Ecuadorian Culture] authorized
Engineer Virgilio Vélez to perform excavations on the Island of Toilita,
Canton of Eloy Alfaro, Esmeraldas Province.
On June 20, 1969, the referenced Mr. Vélez assigned all
excavation rights to the petitioner, who, on the basis of that
assignment, continued with the work and found various archeological
objects, including a gold mask with movable platinum eyes.
These archeological objects were deposited by the petitioner with
the Central Bank of Ecuador.
The petitioner maintains that the ownership of said mask and the
benefits of its discovery were supported by abundant documentation,
which was formally registered with the fifth notary ‘s office in
He alleges that by Supreme Decree 320, promulgated in Official
Registry No. 796 of May 6, 1975 and issued by the Government of General
Guillermo Rodríguez Lara, the aforesaid gold mask was declared to be
property of the National Heritage, without providing for appropriate
compensation to the petitioner. For
that reason, petitioner takes the position that this expropriation
constitutes an illegal and arbitrary act of confiscation.
Petitioner alleges that said Decree was applied retroactively,
without any grounds based on fact or law, that the mask had been
extracted illegally. It
established that the mask was the property of the Casa
de la Cultura Ecuatoriana, according to the petition, but that said
institution was not obligated to pay any compensation to the discoverer
or the owner, thus overlooking the fact that, as of the assignment of
rights in favor of the petitioner, all the benefits of the archeological
discovery were his.
Given the arbitrary nature of this action, Mr. Judge filed
various legal proceedings before the national courts, including an
action to declare Supreme Decree 320 unconstitutional, brought in 1993
before the Court of Constitutional Guarantees, which ruled against the
petitioner in its Decision of December 27, 1995.
The petitioner appealed the Court of Constitutional Guarantees’
ruling on the constitutionality of the decree by filing a writ of cassation before the Constitutional Chamber of the
Supreme Court, which at the time had jurisdiction to hear such matters.
On March 18, 1997, the Constitutional Chamber requested “autos
The Constitutional Chamber, however, was abolished in 1997 as the
consequence of a constitutional reform before it had issued a judgment.
The Administrative Law Chamber of the Supreme Court assumed
jurisdiction over the matter, but also failed to issue a decision.
The Administrative Law Chamber referred the case back to the
Constitutional Court, without notifying the petitioner.
That Court has not ruled in this matter to date.
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, with regard to ratione personae, ratione materiae, ratione temporis y ratione
Under Article 44 of the American Convention, the petitioner is
authorized to lodge complaints with the IACHR.
The petition indicates that the presumed victim is an individual
person, in respect of whom Ecuador undertook a commitment to observe and
guarantee 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, ratione personae, to examine the petition with regard to facts which
took place subsequent to December 28, 1977.
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 that Convention.
In addition, the IACHR is competent,
ratione temporis, because the obligation to respect and guarantee
the rights protected by the American Convention was already in force in
the State on the date on which the events alleged in the petition
occurred. Finally, the
Commission is competent, ratione
materiae, because the petition alleges violations of human rights
set forth in the American Convention.
Other requirements for admissibility of the petition
Exhaustion of domestic remedies
The petitioner contends that there was an unjustified delay in
the judicial proceedings of the national courts in this case, since nine
years have lapsed from the time the appeal (on the grounds of
unconstitutionality) was filed, without a judgment in the case.
The State did not respond throughout the proceedings before the
Inter-American Commission. Hence
it never alleged the existence of any 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 it received the first communication
sent by the IACHR.
The Inter-American Court of Human Rights has repeatedly held that
when a State fails to present an objection based on lack of exhaustion
of domestic remedies, that State is presumed to have tacitly renounced
its right to this defense.
Therefore, the Inter-American Commission finds that the State has
renounced its right of objection based on lack of exhaustion of domestic
remedies, since it did not present said plea either within the legally
established period of time, or at the opportunities available to it
during the proceedings.
Deadline for presentation
In the petition under consideration, the IACHR found that the
State had 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. The requirements,
however, under the Convention, regarding the 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 was
presented within a reasonable period of time.
On this point, the IACHR notes that the petitioners argued that
there was an unjustified delay in the judicial proceedings.
In this context, the Commission notes that in order to apply the
exception of unwarranted delay there must be a final decision issued by
the national courts and takes into consideration the date of the last
appeal filed. On these
grounds, the IACHR finds that the petition was presented within a
reasonable time period.
c. Duplication of
procedures and res
The case record 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 circumstances stipulated in Article
46(1)(d) and in Article 47(d) of the American Convention are not
Nature of the alleged events
The Commission is of the opinion that if the alleged facts are
proven to be true, they constitute violations of the rights guaranteed
in Articles 1(1), 8, 21, 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 the
alleged violations of the rights set forth in Articles 1(1), 8, 21, 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 consideration of this case, pursuant to Article
17 of the Commission’s Rules of Procedure.
“Autos para sentencia” is a term of art, whereby a
judge announces that a case is closed and that he is considering his
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.)
Idem, para. 54.