ANÍBAL GRIJALVA BUENO
On September 13,
2001, the Inter-American Commission on Human Rights (hereinafter “the
Commission”) received a complaint lodged by Dr. Francisco López Bermúdez,
the director of the Andean Democratic Audit, an Ecuadorian
nongovernmental organization, on behalf of Vicente Anibal Grijalva
Bueno, (hereinafter “the petitioner”), against the Republic of
Ecuador (hereinafter “Ecuador” or “the State”) claiming a breach
of legal due process and the absence of judicial protection in the
violation of the right to be heard by the appropriate judge since he was
being prosecuted by a military court.
In addition he claimed a violation of the right to judicial
protection due to the Ecuadorian Government’s failure to abide by a
resolution handed down by the Court of Constitutional Guarantees. The
petitioner claims violations of Articles 8 (right to a fair trial) and
25 (judicial protection) of the American Convention on Human Rights
(hereinafter “the American Convention”), all in breach of the
obligations set forth in Article 1(1) thereof.
According to the petition, during the administration of President
León Febres-Cordero (1984-88), a series of human rights abuses were
committed. In August 1991, Capt. Grijalva, Security Chief of the First
Naval Zone, was apprised of these facts by, inter alia, Balter Prías, an agent of the Naval Intelligence
Service. Capt. Grijalva immediately reported this information to his
superiors. At that moment a clear and persistent campaign of persecution
was launched against him; he was even charged with a series of crimes
that he did not commit, which ultimately led to his dismissal and his
conviction by military courts. The petition maintains that this violated
Mr. Grijalva’s right to due process and judicial protection, as set
forth in Articles 8 and 25 of the American Convention.
Consequently, since the petition meets the requirements set in
Articles 46 and 47 of the American Convention, the Commission decides to
declare this case admissible, to notify the parties of that decision,
and to continue with an analysis of the merits with respect to the
alleged violations of Articles 8, 25, and 1(1) of the American
Convention. At the same time, it decides to publish this report.
PROCESSING BY THE COMMISSION
On November 19, 2001, the Commission began processing this
petition as Nº P-649/01 and transmitted the relevant parts to the
Ecuadorian State, with a two-month deadline for it to submit
On April 30, 2002, the Commission received the State’s response
to the petition. This response was forwarded to the petitioner on May
17, 2002, with a request for him to submit his comments within a period
of 30 days. On June 18, 2002, the Commission received the petitioner’s
comments on the State’s response. On July 2, 2002, the comments were
transmitted to the State, along with a request for any additional
information to be submitted within the following 30 days. On August 7,
2002, the State requested a 30-day extension for submitting its reply.
On August 9, 2002, the Commission granted this extension but to date,
the State has not furnished any further information.
POSITIONS OF THE PARTIES REGARDING ADMISSIBILITY
On October 26, 1992, the Council of Superior Officers, through a
secret committee set up by Commanding Admiral of the Navy Jezid
Jaramillo, resolved to discharge Mr. Grijalva from the service on
allegations of bad conduct. Mr. Grijalva maintains that his discharge
was based on false evidence and claims that Capt. Fausto Morales
Villota, the assistant director of the Intelligence Service, produced
false documents to incriminate him and another group of seamen in
alleged irregularities in the port of Bolívar.
On November 19, 1993, Commanding Admiral of the Navy Oswaldo
Viteri ordered the law judge of the First Naval Zone, Rear Admiral Hugo
Cañate Jalón, to begin legal action against Mr. Grijalva, even though
the First Naval Zone’s investigating judge ruled that there were no
grounds for a criminal trial. On November 29, 1993, the commanding
officer of the First Naval Zone, Hugo Cañarte, ordered the First Naval
Zone’s military criminal judge to begin summary proceedings. On
November 30, 1993, criminal judge Pablo Burgos Cuenca opened the summary
proceeding; the prosecuting officer was Dr. Ramiro Cruz Mayorga, the
Third Naval Zone’s prosecutor, who had, in conjunction with Third Zone
judge Carlos Romero, covered up the crimes committed in the case of
Stalin Bolaños (the case that Mr. Grijalva had reported to his
In this trial Mr. Vicente Grijalva was convicted in a military
court, on the basis of the same accusations and evidence that led to his
discharge. The judge at this trial was Capt. Shuber Barriga Chiriboga, a
lawyer who had previously ruled that the death of Stalin Bolaños was
due to alcoholic poisoning, thereby completely exonerating the
individual responsible (Fausto Morales).
On October 19, 1998, the First Naval Zone’s Law Court opened
the plenary session and Mr. Grijalva was criminally charged before
military courts (his earlier discharge notwithstanding) with the crime
of abuse of authority, based on the same incidents that had led to his
dismissal from the service. On March 13, 2000, presiding judge Admiral
Fernando Donoso Morán handed down a conviction against Mr. Grijalva. On
March 13, 2001, the Court of Military Justice issued a judgment
upholding Mr. Grijalva’s abuse of authority conviction.
On September 8, 1994, Mr. Grijalva asked the Court of
Constitutional Guarantees–the supreme authority on matters related to
human rights and constitutional guarantees–to analyze his discharge
from the navy. On September 12, 1995, the Court of Constitutional
Guarantees ordered the navy to reinstate Mr. Grijalva and another eight
sergeants who had also been discharged from the service because the
dismissal procedures had failed to respect their right of defense. The
provisions of that resolution have still not been enforced.
In its initial reply, the State gave an overview of the history
of Mr. Grijalva’s case before the Ecuadorian courts; it also stated
that the appropriate and effective domestic remedies for resolving the
petitioner’s legal situation had not yet been exhausted since there
was still an outstanding criminal case against Mr. Grijalva for
allegedly collecting illicit sums of money and granting fuel permits,
initiated by the military criminal judge of the First Naval Zone, who
commenced the trial proceedings on June 15, 1994.
In addition, the State maintains that the petitioner could still
file a writ for review, set forth in Article 385 of the Ecuadorian Code
of Criminal Procedure in the following terms: “the remedy of review
shall be applicable to all convictions and shall be lodged with the
Supreme Court of Justice in the following cases: ...”; in its
submission, however, the State does not specify in which cases.
Secondarily, following the failure to exhaust the available
domestic remedies, the State maintains that this petition has exceeded
the six-month deadline stipulated in the Convention, in that Mr.
Grijalva lodged his complaint with the Commission in November 2001, in
that eight months had gone by since the final judgment. The final
judgment is taken to mean the act of March 31, 2001, by which the Court
of Military Justice dismissed the appeal filed by Mr. Grijalva against
the judgment of the military criminal judge and upheld in its entirety
the judgment handed down by the lower
The State maintained that Mr. Grijalva enjoyed complete access to
judicial remedies and that he has described nothing that would tend to
indicate a violation of his right to due process under Article 8 of the
Convention. The State further pointed out that the complaint alleging a
violation of the right to judicial protection, set forth in Article 25
of the American Convention, is inadmissible, in that said article says
that the State must guarantee the possibility of developing judicial
remedies, which it did do in this case.
ANALYSIS OF ADMISSIBILITY
Competence of the
Commission Ratione Personae, Ratione
Materiae, Ratione Temporis, and Ratione
The petitioner is entitled, under Article 44 of the American
Convention, to lodge complaints with the Commission. The petition names
Mr. Vicente Aníbal Grijalva Bueno as the alleged victim. Mr. Grijalva
is a person under the terms of Article 1(2) of the American Convention.
The respondent State, the Republic of Ecuador, ratified the American
Convention on December 28, 1977. The Commission therefore has competence
ratione personae to examine
As regards its competence ratione
loci, the alleged violations were committed within the jurisdiction
of the Republic of Ecuador.
With respect to its competence ratione
temporis, the alleged violations were committed at a time after the
ratification of the American Convention on December 28, 1977.
As for its competence ratione
materiae, the Commission is competent because the alleged violations
are of rights protected by the American Convention.
B. Other Requirements for Admissibility
Exhaustion of Domestic Remedies
Article 46 of the American Convention provides that the
admissibility of a case depends on the remedies available under domestic
law having been “pursued and exhausted in accordance with generally
recognized principles of international law.” This requirement was set
to guarantee the State in question the opportunity of resolving disputes
within its own legal framework.
The Commission thus understands that in the case at hand, the
remedies offered by military criminal law have been exhausted, and so
the judgment of March 13, 2001, handed down by the Court of Military
Justice constitutes, for the purposes of Article 46(a) of the American
Convention, the final judgment.
As stipulated in Article 46(1)(b) of the Convention, all
petitions must be lodged on a timely basis in order to be admitted: that
is, within the six months following the date on which the complainant
was notified of the final decision adopted under domestic law. The
six-month rule guarantees legal certainty and stability once a decision
has been handed down.
According to the case file before the Commission, the judgment of
the Court of Military Justice was handed down on March 13, 2001, six
months prior to the submission of the complaint to the Commission, on
September 13, 2001.
Duplication of Proceedings and Res
Article 46(1)(c) states that the admissibility of a petition
depends on the matter not being “pending in another international
proceeding for settlement,” and Article 47(d) of the Convention
provides that the Commission cannot admit a petition that is
“substantially the same as one previously studied by the Commission or
by another international organization.” The parties in the case at
hand have not claimed the existence of either of these grounds for
inadmissibility, nor can the existence of either one be inferred from
Characterization of the Alleged Facts
Article 47(b) of the American Convention stipulates that any
petition that does not state facts that tend to establish a violation of
the rights guaranteed therein shall be declared inadmissible. In this
regard, the Commission concludes that the alleged facts can give rise to
questions related to the guarantees set forth in Article 25(c) of the
Convention, namely ensuring that the competent authorities enforce, with
respect to all persons, all judicial decisions in which remedies are
The Commission considers that, in this case, if the facts are
proven to be true, they could tend to establish a violation of the
rights protected by Articles 8, 25(c), and 1(1) of the American
The Commission concludes that it is competent to hear this case
and that the petition is admissible in conformity with the exception
provided for in Article 46(2)(d) of the American Convention.
Based on the foregoing considerations of fact and law, and
without prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to Articles 1(1), 8,
and 25 of the American Convention.
To notify this decision to the petitioner and to the State.
To continue with its analysis of the merits of the case.
To publish this report and to include it in the 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 10th day of October,
2002. (Signed): Juan Méndez, President; Marta Altolaguirre, First
Vice-President; José Zalaquett, Second Vice-President; Commissioners
Robert K. Goldman, Clare Kamau Roberts, and Susana Villarán.
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate
in this case in compliance with Article 17 of the Commission’s
Rules of Procedure.
The Commission cannot avoid noting the contradictory position
adopted by the State. Thus, on the one hand it argues that
exhaustion has not taken place (paragraphs 10 and 11) and, on the
other, that the six-month deadline has expired (paragraph 13).