FAUSTO MENDOZA GILER AND DIÓGENES MENDOZA BRAVO
March 15, 2006
1. On July 23, 2001, the Inter-American Commission on Human Rights (“the Commission” or “the IACHR”) received a petition lodged by the Standing Committee for the Defense of Human Rights and María Leonor Giler Esmeraldas (“the petitioners”), alleging violation by the Republic of Ecuador (“Ecuador,” “the State” or “the Ecuadorian State”) of the rights to life and integrity of Fausto Fabricio Mendoza Giler (16 years of age) and to the integrity and personal liberty of Mr. Diógenes Monserrate Mendoza Bravo, rights enshrined in Articles 4, 5 and 7 of the American Convention on Human Rights (“the Convention” or “the American Convention”), in conjunction with Article 1(1) of the Convention. The petitioners claim that delays in the administration of justice due to the crime remaining unsolved, and the subsequent lack of any punishment of those responsible for the death of Fausto Fabricio Mendoza also constitute a violation of the rights to a fair trial and to judicial protection enshrined in Articles 8 and 25 of the Convention, in conjunction with Article 1(1) of the same. The alleged violations are related to the detention on March 19, 2000, of the 16 year old Fausto Fabricio Mendoza and his father Diógenes Mendoza by members of the police force’s Special Operations Group (Grupo de Operaciones Especiales or GOE). At the time of detention, Fausto Fabricio Mendoza was beaten, resulting in his death.
2. In this report on the Friendly Settlement undertaken in accordance with Article 49 of the American Convention and Article 41(5) of the Rules of Procedure of the Inter-American Commission on Human Rights (“the Rules of Procedure”), the IACHR summarizes the alleged violations, outlines the agreement reached by the parties, and announces publication of this report.
II. PROCEEDINGS BEFORE THE COMMISSION
3. On July 23, 2001, The Commission received the petition submitted by Maria Leonor Giler Esmeraldas and the Standing Committee for the Defense of Human Rights and assigned it number 0533/2001. On August 30, 2001, it transmitted the pertinent parts of said petition to the State, setting a period of 2 months for response to the Commission.
4. On November 28, 2001, the State responded to the Commission’s request for information. On December 19, 2001, the pertinent parts of that submission were transmitted to the petitioners who were given 30 days to comment. After this both parties submitted additional information on the case on several occasions. On July 3, 2003, Mr. Diógenes Mendoza Bravo requested that the Commission allow the Ecumenical Committee on Human Rights (Comisión Ecuménica de Derechos Humanos, or CEDHU) be allowed to participate in the case as a co-petitioner. Said request was granted with the petitioners being informed of the same on August 18, 2003.
5. On December 10, 2004, the Commission placed itself at the disposal of the parties for the purpose of trying to reach a friendly settlement in accordance with Article 41(1) of its Rules of Procedure. The Commission repeated its offer on January 5, 2005, giving the State a period of one month to consider and respond to the offer. The petitioners informed the Commission, in a letter received on January 10, 2005, that they were willing to enter into talks with the State with a view to reaching a friendly settlement of the matter.
6. On August 2, 2005, the petitioners informed the Commission that they had reached a friendly settlement with the State, and said agreement was signed on September 20, 2005.
III. THE FACTS
7. Mr. Diógenes Monserrate Mendoza Bravo reported that on March 19, 2000, he was traveling with his son, Fausto Fabricio Mendoza Giler (16 years of age) in a Mazda pickup truck. Around 1:30 AM, in the vicinity of a place known as “Rancho Texas.” they stopped for two women requesting a ride to the neighborhood of Florida Norte. According to the petitioner and apparently due to the state of inebriation of the person in question, one of the women tried to open the door of the vehicle, making it necessary for him to bring the vehicle to a stop, at which time the two women got out and started running and a GOE patrol car arrived on the scene. The police opened fire on Mr. Mendoza’s vehicle with Mr. Mendoza being hit. Mr. Mendoza adds that his son, frightened by the shots, grabbed a firearm present in the pick up and fired a shot into the air. The police then immediately arrested Mr. Diógenes Mendoza and Fausto Fabricio Mendoza, both of whom were brutally beaten on the way to the station of the National Police. As a result of the beating, Mr. Mendoza’s son was in critical condition and was transported to the Luis Vernaza Hospital.
8. Doctors at the hospital confirmed the death of Fausto Fabricio Mendoza as a result of serious injuries to his head, arms and legs, all of which were duly detailed in the medical report. During this period, Mr. Diógenes Mendoza was being held in a police cell where he remained until March 28, 2000, date on which the mayor of Guayaquil ruled in favor of the writ of habeas corpus that had been filed.
9. Mr. Diógenes Mendoza reported that he filed charges in the Seventh Criminal Court of Guayas against the police officers that murdered his son. On June 28, 2000, the Tenth Justice of said Court, in substitution of the judge previously handling the case, ruled that he was incompetent to hear the case, citing that the defendants enjoyed police jurisdiction and referring the case to the Command of National Police District Number Four. On July 20, 2000, the Second Court of National Police District Number Four issued a very general indictment without bringing any formal charges against the police officers in question, in spite of the fact that they had been clearly identified.
10. The Commission was informed by Ecuador that as of March 17, 2004, nearly four years after the events described, the violations remained unpunished.
IV. FRIENDLY SETTLEMENT
11. The State and the petitioners have signed a friendly settlement agreement, the text of which provides as follows:
12. The Commission deems the terms of the above-detailed settlement compatible with the obligations established by the American Convention on Human Rights and thus confirms it. The Commission also reaffirms its own jurisprudence establishing that lack of independence and impartiality make military or police jurisdictions incompetent to hear cases on human rights violations.
13. The Commission ratifies and considers positive the signing of a friendly settlement under the terms of the Convention. Friendly settlement as contemplated in the American Convention allows for individual cases to be concluded without resort to litigation and has proven itself to be an effective procedure for all parties.
14. The IACHR has closely followed the developments leading to a friendly settlement in this case. Further information provided indicates that the State has made the stipulated compensatory payment to Mr. Diógenes Mendoza Bravo.
15. The Commission will continue to monitor compliance of the commitments assumed by Ecuador with respect to the prosecution and punishment of any responsible parties before a competent, independent and impartial court, as well as compliance with any other reparations stipulated.
16. Based on the above-mentioned findings of fact and law:
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To approve the terms of the friendly settlement signed by the parties on October 10, 2005.
2. To continue with its monitoring and supervision of compliance with each and every point in the friendly settlement; and, in this context, to remind the parties of their obligation to inform the IACHR of compliance with this friendly settlement.
3. To publish this report and to include it in its Annual Report to the General Assembly of the OAS.
Done and signed in the city of Washington, D.C., on the 14th day of the month of March, 2006. (Signed): Evelio Fernández Arévalos, President; Paulo Sérgio,Pinheiro, First Vice-President; Florentín Meléndez, Second Vice-President; Clare K. Roberts, Freddy Gutiérrez Trejo, Paolo Carozza and Víctor E. Abramovich Commissioners.