In a petition received by the Inter-American Commission on Human
Rights (hereinafter "the Commission" or the "IACHR")
on December 10, 1997, the Comisión
Ecuménica de Derechos Humanos (Ecumenical Commission for Human
Rights) (hereinafter “the petitioner") filed a complaint against
the State of Ecuador (hereinafter "Ecuador" or "the
State"), for violating the human rights of Mrs. Dayra María
The petitioner maintains that Mrs. Levoyer Jiménez was detained
without judicial order and held in solitary confinement for 39 days,
during which time she was subjected to psychological torture.
She was held, without a judgment being rendered, for more than
five years, with all of the charges against her eventually being
dismissed. During her detention, numerous writs of habeas
corpus were filed unsuccessfully.
Finally, on June 16, 1998, the Constitutional Court ruled in an
appeal of the last habeas corpus
that she be set free in view of the extended duration of her pretrial
the petitioner alleges that the State violated her rights to personal
liberty, due process, humane treatment, and access to a simple and
prompt recourse to have her rights recognized, in accordance with
Articles 5, 7, 8, and 25 of the American Convention on Human Rights
(hereinafter "the Convention" or "the American
The petitioner further maintains that the detention and
subsequent incarceration of Mrs. Levoyer Jiménez for more than five
years is due exclusively to the fact that she is the companion of Hugo
Jorge Reyes Torres,
who was accused of being the leader of a powerful gang of drug
traffickers in Ecuador. The
petitioner also alleges that the State violated her right to property,
as set forth in Article 21 of the Convention, because the property
seized when she was detained has not yet been returned to her.
The State argues that domestic remedies have not been exhausted.
The Commission has decided to admit the petition and to put
itself at the disposal of the parties with a view to reaching a friendly
settlement based on respect for the human rights recognized in the
PROCESSING BY THE COMMISSION
On December 29, 1997, the Commission received the complaint from
the petitioner, and on March 19, 1998, forwarded it to the government. On July 7 and 13, 1998, the Commission received additional
information from the petitioner, which was forwarded to the State in due
course. On July 27, 1998,
the Commission received the State's response, which was forwarded to the
petitioner, who was given 30 days in which to submit its observations.
The petitioner's response was received on August 10 and was forwarded to
the Government on September 2. The
latter was given 30 days in which to respond.
On December 10, 1998, the Commission received additional
information from the petitioner, which was forwarded to the State in due
course. From February to
December 1999, the Commission made itself available to the parties so
that they could reach a friendly settlement but so far they have failed
to do so.
POSITIONS OF THE PARTIES
Position of the petitioner
According to the information provided by the petitioner, Mrs.
Levoyer Jiménez was detained without a judicial order on June 21, 1992,
in "Operación Ciclón" (Operation Cyclone), a police
operation in which a large number of people suspected of being members
of a gang of drug traffickers were arrested.
At the time of her arrest, she was not told why she was being
detained. She was held in
solitary confinement for 39 days, during which time she is alleged to
have been subjected to psychological torture to make her testify.
The warrant for her arrest was issued by the mayor after she was
detained, on July 30 and 31, 1992, charging her with the crimes of drug
trafficking, acting as a “front”, illicit enrichment, and asset
laundering (conversión de bienes).
In addition, the criminal court of Pichincha issued an arrest
warrant on August 11, 1992, nearly two months after her arrest.
As a result of that arrest warrant, four sets of proceedings were
instituted against Mrs. Levoyer Jiménez and other persons.
One of the defendants, a Major General in the Army,
was subject to special jurisdiction.
Consequently, the proceedings were removed to the Superior Court
The President of the Superior Court of Quito (hereinafter called
“the Superior Court”) established jurisdiction for the judicial
proceedings in September and November 1992, and upheld pre-trial
detention in the four cases, and orders for imprisonment were issued on
December 1, 1992. In 1996,
the Attorney General of Pichincha issued an opinion, without accusing
Mrs. Levoyer of any of the four charges.
In the proceedings for illicit enrichment, although no charges
were brought by the Prosecutor, the President of the Superior Court
ruled that a plenary be held on the matter on November 22, 1996.
This ruling was appealed and brought before the bench in the
Fourth Division of the Superior Court, which on April 29, 1998,
dismissed the proceedings. In
the proceedings for asset laundering, on September 30, 1996, the
President of the Superior Court issued a temporary stay of proceedings
and ruled for legal consultation, which was resolved by the Fourth
Division of the Superior Court on April 29, 1998, also with a ruling of
10. In ruling on the legal opinion, the Fourth
Division of the Superior Court ordered the dismissal of the proceedings
for illicit enrichment and asset laundering, on the basis of Articles 76
and 77 of the Narcotics and Psychotropic Substances Act, which stipulate
that a prerequisite for bringing such charges is that a drug trafficking
crime must have been committed, which had not been proven in the case.
The Attorney General’s Office (Ministerio
Publico) filed a motion for reversal of the decision handed down by
the Fourth Division in both cases (illicit enrichment and asset
laundering). As the motion
for reversal of judgement was denied, the Prosecutor filed a motion of
According to the information provided to the Commission, this
last motion was being processed in July 1998.
Consequently, the judgment dismissing the charges of
illicit enrichment and conversion of property was not final.
The petitioner alleges that, according to the jurisprudence of
the Supreme Court on motions for reversal, the filing of such a motion
was unlawful since the Code of Procedure provides that it may only be
used against judgments in the criminal courts when a breach of the law
has occurred. Therefore,
the petitioner argues, the remedy may not be used against rulings for
dismissal by a division of the Superior Court, as in the present case.
In the proceedings relating to acting as a “front” for
criminals, on April 29, 1996, the President of the Superior Court
ordered that Mrs. Levoyer be released.
On March 23, 1998, an order to initiate the second phase of
proceedings was handed down, which was appealed. On July 7, 1999, the
First Division of the Superior Court upheld the dismissal of the case
and ruled that the property be returned to her upon judgement being
rendered. The petitioner
alleges, therefore, that the right to property has been violated, since
as the charge has been dismissed, there will be no judgment, and,
therefore, that withholding of the property is tantamount to
confiscation. In the
proceedings for drug trafficking, on July 19, 1995 a dismissal was
ordered. Upon review, the
First Division of the Superior Court upheld the dismissal on April 16,
As each of the various proceedings against Mrs. Levoyer was
dropped, orders for her release were issued. However, these orders could
not be executed since the Code of Criminal Procedure requires that all
motions for dismissal be heard by the Superior Court.
Accordingly, one after another, the proceedings were reviewed by
different chambers of the Superior Court of Quito as mentioned above.
In proceedings that involve offenses punishable under the
Narcotics and Psychotropic Substances Act, the defendant must remain in
custody for the duration of the proceedings even though a case may have
been dismissed. The
petitioner maintains that for any other offense, the defendant would
have been released before the decision was reviewed.
report the Commission received from the petitioner on December 10, 1998,
noted that, after Mrs. Levoyer was detained, in addition to the four
proceedings mentioned above, the following proceedings were instituted:
Proceedings for illegal possession of firearms, in which a
temporary stay was ordered on November 7,
Proceedings for illegal possession of firearms, in which a
temporary stay was ordered on November 7,
customs proceeding, initiated on March 11, 1994, which was ordered
dismissed on December 22, 1995.
for asset laundering brought by Banco de los Andes, initiated on
June 23, 1994, in which a full trial was ordered on January 23,
Proceedings for asset laundering brought by Banco Sociedad
General de Crédito, initiated on January 30, 1996. As of July 1998,
these proceedings were in the preliminary phase.
In the proceedings for asset laundering brought by Banco de los
Andes, the Second Division of the Superior Court, after several
incidental pleas, referred the case to the associate judges of that same
bench, who dismissed the charges on July 5, 1999. Apparently, the bench
found that three cases for asset laundering had been instituted on the
basis of Operation Cyclone, in violation of the prohibition of double
The petitioner notes that during her detention Mrs. Levoyer filed
many writs of amparo or habeas
corpus in an effort to seek her release, on grounds that her
detention was a violation of the Constitution, the law, and human rights
treaties. Writs were filed
on July 26, 1994, on April 3, 1995, in March 1996, on October 18, 1997,
and on November 18, 1997. All
of these motions were filed with the President of the Supreme Court of
Justice, who did not rule on any of them.
Finally, as mentioned earlier, on June 16, 1998, the
Constitutional Court heard an appeal of her final writ of habeas
corpus and ordered that she be released.
On April 15, 1998, a writ of habeas
corpus was filed, requesting that the Mayor of Quito
release Mrs. Levoyer immediately. The petition was denied on April 21,
1998, a ruling that was appealed on April 24, 1998 before the
The Second Division of the Constitutional Court, in a ruling
handed down on June 16, 1998, considered that the terms specified in Law
had been exceeded, reversed the Mayor’s decision, and ordered that
Mrs. Levoyer Jiménez be released.
The Constitutional Court noted in its ruling that the exception
in the narcotics and psychotropic substances Act to the application of
Article 114(1) of the Criminal Code, for offenses considered thereunder,
had been declared unconstitutional by that same Court in Resolution Nº
119-1-97 of December 24, 1997. Accordingly, it added, it was no longer in force.
On these grounds, the Court considered the time requirements
specified in Article 114(1) to be met and ordered the release of Dayra
María Levoyer Jiménez, which occurred a few days later.
Mrs. Levoyer Jiménez was released in June 1998, six years after
she had been detained. So
far, all of the charges against her have been dismissed.
The State's position
On July 27, 1998, the State's response was received.
It argues that in the instant case a violation of human rights
cannot be considered to have occurred because domestic remedies have not
It argues that Article 249 of the Code of Criminal Procedure
establishes that, once an indictment has been made, preliminary
proceedings are suspended for five years, during which time new evidence
may be presented as to the defendant’s innocence or guilt.
In addition, Article 252 of the Code provides that, once that
period has lapsed, and provided that the proceedings have not been
re-opened, the court shall issue a ruling of dismissal.
Accordingly, the State considers that since the periods provided
for in Article 249 have not expired, and until preliminary proceedings
may be closed under the terms of Article 252, domestic remedies have not
In this same vein, it notes that in the proceedings for illicit
enrichment a full trial was ordered and, therefore, domestic proceedings
have not yet concluded.
The State has reported that the following proceedings are ongoing
against Mrs. Levoyer (as of May 14, 1998):
As mentioned earlier, the courts ordered that most of the charges
ANALYSIS ON ADMISSIBILITY
The Commission now moves on to analyze the admissibility
requirements of the petition established in the American Convention.
Jurisdiction of the Commission ratione
materiae, ratione personae, ratione loci, and ratione temporis.
The Commission has jurisdiction to hear the petitioner's
complaint ratione materiae, ratione personae, ratione loci, and ratione
temporis insofar it concerns violations of Articles 5, 7, 21, 8, and 25 of
the Convention to the detriment of Dayra Maria Levoyer Jiménez, an
Ecuadorian citizen, it is against the State of Ecuador, a State party to
the Treaty, and the violations were allegedly committed on Ecuadorian
territory after the country had ratified the Convention.
With respect to competence ratione
personae, the Ecumenical Council of Human Rights (CEDHU) is a
nongovernmental organization that is legally recognized in Ecuador and,
pursuant to Article 44 of the Convention, entitled to file petitions
with the Commission. In
view of the foregoing, the Commission is competent to examine the
complaint filed by the petitioner. The Commission, therefore, proceeds
to determine whether the case satisfies the requirements established in
Articles 46 and 47 of the American Convention.
Other admissibility requirements of the petition
Exhaustion of domestic remedies
More than five years elapsed from the outset of the judicial
proceedings until submission of the complaint to the Commission, without
any judgment being rendered against the alleged victim.
During that time, Mrs. Levoyer Jiménez remained in pre-trial
detention. At this time, all of the charges against the alleged victim
have been dismissed. Therefore, the Commission is of the view, without
this implying any opinion as to the merits of the question, which will
be addressed in due course, that there may have been an unwarranted
delay in the judicial proceedings in this case, that is, one of the
exceptions referred to in Article 46(2)(c) of the Convention, whereby
petitioners are exempted from the requirement of exhausting domestic
The Commission notes that in at least one of the proceedings
charges against the alleged victim were temporarily dismissed.
This implies, according to the information furnished by the
State, that the case will remain open for five years, during which time
it could be reopened if new evidence is presented as to the victim's
innocence or guilt. This
possibility leaves the case pending, making it impossible to exhaust
domestic remedies within a reasonable period.
Furthermore, as to the alleged violation of Article 7 of the
Convention, the petitioner maintains a series of writs of amparo and habeas
corpus were filed within domestic jurisdiction throughout the period
that the alleged victim remained in custody.
A ruling was not taken on most of these writs (see paragraph 14).
One last writ of habeas corpus was filed and again dismissed and was appealed to the
Constitutional Court. This
action was resolved once the petition was before the Commission. The Commission is of the view
that, given the number of writs of habeas
corpus filed, the requirement that domestic remedies be exhausted
has been met.
In this same vein, it is important to add that the many writs of habeas corpus filed by the petitioner are grounds for determining
not only whether she was deprived of her freedom but also whether an
alleged violation of her right to physical and psychological integrity
Accordingly, in the present case, the petitioner exhausted the
remedies under domestic jurisdiction referred to in Article 5 of the
Time period for submission
Article 46(1)(b) of the Convention notes that the petition must
be submitted within six months from the time the victim is notified of
the final decision exhausting domestic remedies.
The Commission is of the view that based on the observations made
in the previous paragraph, this requirement does not apply in the
present case in accordance with Article 46(2) of the Convention.
Duplication of procedures and res
The Commission understands that the subject of the petition is
not pending in another international proceeding for settlement, nor is
it substantially the same as one previously studied by this or another
international organization. Therefore,
the requirements established in Articles 46(1)(c) and 47(d) have also
Characterization of the facts
The Commission considers that if the facts related by the
petitioner in her presentation are proven in its analysis of the merits
of the case, they could constitute a violation of rights guaranteed by
The petitioner maintained that a violation of Article 5 of the
Convention occurred since the alleged victim was subjected to
psychological torture. The
Commission considers that if it is proven that the alleged victim was
kept in solitary confinement for an inordinate period of time that could
constitute a violation of Article 5 of the Convention. As
the Commission maintained in Report 64/99, and in consonance with the
Inter-American Court of Human Rights, “the mere verification that a
person has been held incommunicado for a long period is indicative of the fact that such
person has been subjected to cruel and inhuman treatment.
Accordingly, the Commission finds that with respect to Article 5
the allegation of being held incommunicado, if proven, could constitute
a violation of the aforesaid article.
With respect to the alleged violation of Article 21 in
conjunction with Articles 8 and 25, the Commission considers that in the
present case proceedings against the alleged victim dragged on for more
than five years. Although
most of the proceedings were dismissed, judgment is still pending in
some. The return of the
property requested by the alleged victim is subject to termination of
these proceedings. The
petitioner alleges that pursuant to the domestic law applicable in this
case, such property would not be returned unless a final judgment is
The petitioner goes on to say that this would not happen if the
case is dismissed, and would thus constitute a violation of Article 21
of the Convention.
A decision on this issue, and on the issue regarding the duration
of the proceedings, presupposes an analysis of the merits of the case. Accordingly, the Commission resolves to postpone the question
of admissibility of the alleged violations of Articles 8, 21, and 25 of
the Convention until its consideration of the merits of the case.
Accordingly, as there is no obvious basis to declare the petition
groundless or out of order, the Commission considers that the
requirements set out in Articles 47(b) and 47(c) of the Convention have
Commission concludes the case is admissible pursuant to Articles 46 and
47 of the American Convention.
Based on the foregoing considerations of fact and law, and
without prejudging on the merits,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged
violations of Articles 5, 7, 8, and 25 of the American Convention.
To postpone until the report on the merits the question of the
admissibility of the alleged violation of Article 21, in conjunction
with Articles 8 and 25, of the American Convention.
3. To notify the petitioner and the
State of this decision.
continue with its examination of the merits of the case.
place itself once again at the disposal of the parties with a view to
reaching a friendly settlement based on respect for the rights
recognized in the American Convention, and to invite the parties to
state their views regarding this possibility;
publish this decision and include it in the Annual Report to the OAS
Done and signed
at the headquarters of the Inter-American Commission on Human Rights, in
the city of Washington, D.C., March 7, 2000.
Signed by Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Juan Méndez, Second Vice-Chairman; Commissioners: Marta Altolaguirre,
Robert K. Goldman, and Peter Laurie.
* A member of the Commission, Mr. Julio Prado Vallejo, who is an Ecuadorian national, did not take part in the discussion and did not take part in the voting in the present case, in accordance with article 19(2) of the Regulations of the Commission.
Mr. Jorge Hugo Reyes Torres was also detained in what was known as “Operación
Ciclón” (Operation Cyclone).
 Article 5(5) of the Code of Criminal Procedure of Ecuador establishes that "when, any member of a group charged with an offense is subject to special jurisdiction, all members of the group shall be tried by the same special court...” In addition, Article 11 of the same Code provides: "The President of the Supreme Court and the Presidents of the Superior Courts shall be the investigative judge in those cases of special jurisdiction which, by law, it falls to them to hear." One of the persons investigated with Mrs. Levoyer was a Major General in the Ecuadorian Army. Charges against officers in the Armed Forces must be tried in another court, that is special jurisdiction, and, therefore, according to the above-noted provision, determine that the President of the Superior Court shall have exclusive jurisdiction over them (see Law on Armed Forces Personnel, Organic Law of the Judicial Function, and Code of Criminal Procedure). The offences of which the officers in the Armed Forces were charged meant that they had to be tried outside the Courts, in other words under a special jurisdiction. Accordingly, according to the law, the President
of the Court
of Appeals must hear the reasons for the detention in order to rule
on the matter (Armed Forces Personnel Act, Judicial Functions Act,
and the Code of Criminal Procedure).
A motion of fact is provided for in Article 395 of the Code of
Criminal Procedure as follows: “The
motion will be granted when a magistrate or criminal court has
denied a motion filed by the deadlines established and as specified
in this Code”. Accordingly,
in denying the motion for reversal, a motion of fact must be filed
so that the higher court, the Supreme Court in the present case, can
rule on the merits of the motion.
5 Article 373 of the Code of
Criminal Procedure provides: "The
motion for reversal shall be admissible before the Supreme Court of
Justice when the law has been violated in a judgment, either because
it rules expressly contrary to the wording of the law; or it has
been falsely applied; or, because it has been wrongly
 Article 93 of the Constitution of Ecuador provides that habeas corpus be filed "... with the mayor of the jurisdiction in which the person is charged, or before an individual acting in his stead...."
 Law 04 amended the Criminal Code, adding Article 114(1), which establishes: "persons who are detained, without receiving an order of dismissal or that the second stage of proceedings be opened, for a time equal to or greater than one-third of the time established by the Criminal Code as the maximum sentence for the offense of which they were accused, shall be released by the judge hearing the proceedings. Similarly, persons who are detained, without having received a judgment, for a period equal to or greater than one-half of the time specified in the Criminal Code as the maximum penalty for the offense of which they were accused, shall be released immediately by the criminal court hearing the proceedings."
Article 5(2) of the Convention establishes that “No one shall be
subjected to torture or to cruel, inhuman, or degrading punishment
or treatment. All
persons deprived of their liberty shall be treated with respect for
the inherent dignity of the human person.”
The Code of Criminal Procedure of Ecuador makes provision for res judicata in the case of final dismissal but not in the case of
provisional dismissal. The
petitioner alleges that even in the event of final dismissal this
would not be a final judgement and therefore the property would
never be returned. The
relevant section of Article 110 of the Narcotics and Psychotropic
Substances Act states that “Should the accused whose property has
been seized be acquitted, the property will be returned to their
owner...when the judge so orders once the precautionary measures
have been lifted.”