REPORT Nº 65/03
JOAQUÍN HERNÁNDEZ ALVARADO,
MARLON IVÁN LOOR ARGOTE, AND HUGO JHOE LARA PINOS
October 10, 2003
On May 7, 2001, the
Inter-American Commission on Human Rights (hereinafter “the Commission”)
received a petition lodged by the lawyer Ronald Game Intriago (hereinafter
“the petitioner”) alleging that the Republic of Ecuador (hereinafter
“the State” or “Ecuador”) had violated Articles 5 (humane treatment), 8
(fair trial), and 25 (judicial protection) of the American Convention on
Human Rights (hereinafter “the American Convention”), all in conjunction
with Article 1(1) thereof, with respect to Dr. Joaquín Hernández
Alvarado, Mr. Marlon Loor Argote, and Mr. Hugo Lara Pinos.
The petitioner claimed that on May 22, 1999, Messrs.
Hernández Alvarado, Loor Argote, and Lara Pinos were attacked by
officers of the National Police, and he underscored the Ecuadorian
courts’ delay in prosecuting and punishing the perpetrators. The State
claimed that domestic remedies had not been exhausted.
At its 114th regular session, the Commission adopted
Nº 11/02 (February 27, 2002), in which it declared this case admissible
as regards the alleged violation of Articles 5, 8, 25, and 1 of the
Convention, ruling that the case met the requirements set forth in
Articles 46 and 47 of the American Convention. Marlon Loor and Hugo
Lara Pinos reached friendly settlement agreements with the State on
November 26, 2002, and Joaquín Hernández Alvarado and the State struck a
third agreement on December 16, 2002. This report contains a brief
description of the facts and the text of the settlement reached (which
is the same in all three agreements) in compliance with Article 49 of
FACTS OF THE CASE
According to the complaint received by the Commission, on May 22, 1999,
at approximately 8:00 p.m., Messrs. Joaquín Hernández Alvarado, Marlon
Loor Argote, and Hugo Lara Pinos were shot at by a group of National
Police officers while driving through the city of Guayaquil. Mr. Marlon
Loor Argote, the head of public relations with the office of the
Comptroller General of the State, at that time serving as a
parliamentary advisor to the National Congress and an Ecuadorian
national, was the owner of the 1998 Daewoo Cielo in which they were
traveling. The attack lasted some ten minutes, during which time two of
the three men were wounded. Dr. Hernández Alvarado, a doctor in pure
philosophy, the director of the graduate school at the Catholic
University of Santiago in Guayaquil, and a columnist for the newspaper
Hoy, is a Salvadorian national who has been a resident of Ecuador
for many years; he received a gunshot wound in his back as he got out of
the vehicle. Mr. Hugo Lara Pinos, an Ecuadorian national of adult age
and at that time a student, was wounded while still inside the car. They
were then thrown onto the ground, handcuffed, and subjected to physical
and verbal abuse and then taken to the city’s police headquarters, where
the abuse, kicks, and insults continued for almost three hours.
point out that the police subsequently apologized, explaining that the
attack occurred as a result of an error in an operation led by 2nd Lt.
Freddy Osorio. Col. Abraham Correa Loachamin, at that time the Chief of
Police in Guayas province, appeared in the news media 48 hours after the
incident to acknowledge that what had happened was a “police error,”
explaining that it was due to “confusion” on the part of the officers
involved. In a later press release, police headquarters acknowledged
the “police error” and explained that it was caused by a false stolen
vehicle report. The Guayas police admitted their “error in opening fire
on and arresting the occupants of the Daewoo.” Among those who
apologized to Mr. Hernández were the Minister of the Interior, the Chief
of Police, the Governor of Guayas province, and the then President of
the Republic, Jamil Mahuad.
Processing by the Commission
6. On May 7,
2001, Messrs. Joaquín Hernández Alvarado, Marlon Loor Argote, and Hugo
Lara Pinos sent a petition to the Inter-American Commission. The
pertinent parts of this petition were forwarded to the State on July 3,
2001, with a request that the State respond within a period of 60 days.
The State did not reply to the letter; however, after the Commission
restated its request, the State sent a reply on November 28, 2001. This
was forwarded to the petitioner, whose comments were submitted on
January 5, 2002.
7. On February
27, 2002, upon conclusion of the relevant procedures, the Commission
issued Admissibility Report No. 11/02. In letters to the petitioner and
the State dated March 27, 2002, the Commission made itself available to
the parties with a view to reaching a friendly settlement of the matter
based on upholding the human rights recognized in the Convention. In a
letter of April 1, 2002, the petitioner stated his willingness to work
toward such an agreement and, on May 22, 2002, sent additional comments
to the Commission. On July 2, 2002, the Commission sent the State the
relevant parts of the petitioner’s additional comments and, in
compliance with Article 38(1) of the Rules of Procedure, gave it a
period of two months in which to submit its observations on the merits.
stated by the petitioner in his letter of July 22, 2002, during that
same month the parties held direct negotiations and proposed a draft
friendly settlement agreement. All the items contained in the draft
were accepted by the Ecuadorian State, with disagreement surrounding
just one major point, that of the amount of compensation to be paid. In
light of their inability to reach a decision, the petitioner asked the
Commission to continue with its analysis of the merits of the case and
to be granted a hearing before the Commission. The Commission held a
working meeting, attended by both parties, on October 15, 2002, during
its 116th session.
that working meeting, Ecuador acknowledged the facts alleged by the
petitioner and also accepted the legal consequences arising therefrom.
The State also fully accepted its international responsibility in this
During a July 2003 visit to Ecuador, representatives of the Office of
the State’s Attorney General informed the President of the Commission,
Dr. Marta Altolaguirre, that they had reached a friendly settlement with
Messrs. Joaquín Hernández Alvarado, Marlon Iván Loor Argote, and Hugo
Lara Pinos. The three agreements were signed with the State on November
26 and December 16, 2002, and the three victims received their
compensation in March 2003. The parties requested the Commission to
ratify all parts of this friendly settlement and to oversee its
implementation. In the interests of procedural economy the three
agreements will be dealt with in a single report, using brackets to
indicate textual variations corresponding to the second victim (Mr. Loor)
and to the third victim (Mr. Lara).
FRIENDLY SETTLEMENT REACHED
11. The friendly settlement agreement
signed by the parties reads as follows:
The Ecuadorian State,
through the office of the Attorney General, with a view to promoting and
protecting human rights, and recognizing that the unreserved respect for
human rights is currently of great importance for the international
image of our country, as the foundation of a just, worthy, democratic
and representative society, has decided to take a new course in the
evolution of human rights in Ecuador.
The Attorney General’s
office has initiated conversations with all the persons who have been
victims of human rights violations, aimed at reaching friendly
settlement agreements to provide reparations for the damages caused.
The Ecuadorian State,
in strict compliance with the obligations it acquired upon signing the
American Convention on Human Rights and other human rights 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. Joaquín Hernández Alvarado [Mr. Marlon Iván Loor Argote] [Mr.
Hugo Jhoe Lara Pinos] have agreed to reach a friendly settlement
pursuant to the provisions of Articles 48(1)(f) and 49 of the American
Convention on Human Rights and Article 45 of the Rules of Procedure of
the Inter-American Commission on Human Rights.
II. PARTIES TO THE AGREEMENT
The following persons
were present at the signing of this Friendly Settlement Agreement:
a) Dr. Ramón
Jiménez, Attorney General of the State, as indicated in his appointment
and certificate of office, which are attached hereto as qualifying
b) Mr. Joaquín
Hernández Alvarado, a Salvadorian national, with citizenship
document No. 1703265866, [Mr. Marlon Iván Loor Argote, an Ecuadorian
national, with citizenship document No. 090766661-4], [Mr. Hugo Jhoe
Lara Pinos, an Ecuadorian national, with citizenship document No.
020161760-2], attached hereto as a qualifying document.
RESPONSIBILITY AND ACCEPTANCE
The Ecuadorian State
recognizes its international responsibility for having violated the
human rights of Mr. Joaquín Hernández Alvarado [of Mr. Marlon Iván Loor
Argote] [of Mr. Hugo Jhoe Lara Pinos] as enshrined in Article 5 (Right
to Humane Treatment), Article 7 (Right to Personal Liberty), Article 8
(Right to a Fair Trial), and Article 25 (Judicial Protection) of the
American Convention on Human Rights, in conjunction with the general
obligation contained in Article 1(1) thereof, and in other international
instruments, since the violations were committed by State agents and
could not be disproved by the State, thus giving rise to State
Given the above, the
Ecuadorian State accepts the facts in case No. 12.394 now before the
Inter-American Commission on Human Rights and agrees to undertake the
necessary reparatory steps to compensate the victims, or their
successors, for the damages caused by those violations.
In view of the
foregoing, the Ecuadorian State, through the Attorney General, as the
sole judicial representative of the Ecuadorian State, according to
Article 215 of the Constitution of Ecuador, promulgated in Official
Register No. 1, and in force since August 11, 1998, is awarding Mr.
Joaquín Hernández Alvarado, citizenship document No. 1703265866 [Mr.
Marlon Iván Loor Argote, citizenship document No. 090766661-4] [Mr. Hugo
Jhoe Lara Pinos, citizenship document No. 020161760-2] lump sum
compensatory damages of one hundred thousand [three hundred thousand] [fifty
thousand] United States dollars (USD $100,000.00) [(USD $300,000.00)]
[(USD $50,000.00)], to be paid from the National Budget.
This compensation is
in settlement of all material damages, loss of income, and moral damages
suffered by Mr. Joaquín Hernández Alvarado [by Mr. Marlon Loor Argote]
[by Mr. Hugo Jhoe Lara Pinos] as well as any other claims that Mr.
Joaquín Hernández Alvarado [Mr. Marlon Loor Argote] [Mr. Hugo Jhoe Lara
Pinos] or his relatives might entertain regarding the matter of this
agreement, in accordance with domestic and international law, payable
from the National Budget, for which purpose the Attorney General will
notify the Minister of Economy and Finance so that the obligation may be
V. PUNISHMENT OF THOSE RESPONSIBLE
The Ecuadorian State
undertakes, to the extent possible, to bring both civil and criminal
proceedings and to pursue administrative sanctions against those persons
who, in the course of their official duties or the exercise of public
power, are presumed to have participated in the reported violations.
The office of the
Attorney General undertakes to encourage the Public Prosecutor of the
State, the competent judicial organs, and the competent public or
private agencies to provide legal evidence to determine the
responsibility of those persons. If appropriate, prosecution will be
pursued in accordance with the constitutional and legal framework of the
VI. RIGHT TO SEEK INDEMNITY
The Ecuadorian State
reserves the right to seek indemnity, pursuant to Article 22 of the
Constitution of Ecuador, from those persons found guilty of human rights
violations in a final judgment handed down by an Ecuadorian court, or
when administrative liability has been determined, in accordance with
Article 8 of the American Convention on Human Rights.
VII. TAX-EXEMPT PAYMENTS
The disbursement made
by the Ecuadorian State to the beneficiary of this friendly settlement
agreement shall be free from all existing or future taxation.
The Ecuadorian State,
through the office of the Attorney General, undertakes to report every
three months to the Inter-American Commission on Human Rights on its
fulfillment of the obligations assumed under this friendly settlement
In keeping with its
consistent practice and obligations under the American Convention, the
Inter-American Commission on Human Rights will oversee compliance with
The Ecuadorian State, to the extent that
is legally possible, shall pursue all the steps necessary to comply with
Temporary Provision No. 26 of the Constitution of the Republic, so that
those magistrates and judges currently under the aegis of the executive
branch are transferred to the judiciary.
X. LEGAL BASIS
damages that the Ecuadorian State is awarding to Mr. Joaquín Hernández
Alvarado [to Mr. Marlon Iván Loor Argote] [to Mr. Hugo Jhoe Lara Pinos]
are provided for in Articles 22 and 24 of the Constitution of the
Republic, for violations of the Constitution, of other national laws,
and of the norms in the American Convention on Human Rights and other
international human rights instruments.
settlement agreement is entered into on the basis of respect for the
human rights enshrined in the American Convention on Human Rights and
other international human rights instruments, and in accordance with the
policy of the Government of the Republic of Ecuador to respect and
protect human rights.
Joaquín Hernández Alvarado [Mr. Marlon Iván Loor Argote] [Mr. Hugo Jhoe
Lara Pinos] expressly authorizes the Attorney General to bring this
friendly settlement to the attention of the Inter-American Commission on
Human Rights, so that the Commission may confirm and ratify all portions
The parties signing
this agreement freely and voluntarily express their conformity with and
acceptance of the contents of the preceding clauses, and they state for
the record that they hereby bring to a close the dispute before the
Inter-American Commission on Human Rights regarding the international
responsibility of the Ecuadorian State for violating the rights of Mr.
Joaquín Hernández Alvarado [of Mr. Marlon Iván Loor Argote] [of Mr. Hugo
Jhoe Lara Pinos].
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
12. The Commission has found
the three friendly settlement agreements transcribed above to be
compatible with Article 48(1)(f) of the American Convention.
Commission welcomes the signing of the friendly settlements between the
State and the petitioners, under the terms of the American Convention.
Commission will continue to monitor compliance of the commitment assumed
by Ecuador with respect to the prosecution of the persons involved in
the alleged acts.
15. The IACHR again notes
that the friendly settlement procedure provided for in the American
Convention offers the possibility of concluding individual cases without
resort to litigation, and that in cases involving various countries, it
has been proven to be an important procedure for resolving alleged
violations, one that can be used by both parties (petitioner and State).
The Inter-American Commission on Human Rights,
certify the State’s compliance with its commitment to make compensation
payments in the amounts of US $100,000.00 to Mr. Hernández, US
$300,000.00 to Mr. Loor, and US $50,000.00 to Mr. Lara.
remind the State that it must comply fully with the friendly settlement
agreements by initiating judicial proceedings against the persons
involved in the alleged violations.
3. To continue with its
monitoring and supervision of compliance with each and every point in
the friendly settlements; and, in this context, to remind the State,
through the Attorney General, of its commitment to report every three
months to the Commission on compliance with the obligations assumed by
the State under these friendly settlements.
publish this report and to include it in its Annual Report to the
General Assembly of the OAS.
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 2003. (Signed): José Zalaquett, President; Clare K.
Roberts, First Vice-President; Susana Villarán, Second Vice-President;
Robert K. Goldman, Commissioner.