REPORT
Nº 18/01*
I.
SUMMARY
1.
On November 8, 1994, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”), received a
complaint submitted by the Ecumenical Human Rights Commission (CEDHU,
hereinafter “the petitioner”), claiming that the Republic of Ecuador
(hereinafter “the State” or “Ecuador”) had violated rights
protected by the American Convention on Human Rights (hereinafter “the
American Convention”) with respect to Mr. Marco Vinicio Almeida Calispa,
deceased. The complaint alleged violations of Articles 4 (right to life),
5 (humane treatment), and 8 (fair trial), all in conjunction with Article
1(1) of the American Convention. 2.
The petitioner reports that on May 31, 1988, Mr. Almeida was
arrested, on suspicion of theft, by police officers in the city of Quito.
The petitioner claims that the Ecuadorian police, during the
interrogations conducted at the Criminal Investigation Service in
Pichincha, made use of inhuman and illegal investigative procedures that
caused Mr. Almeida’s death. The petitioner also claims that the
Ecuadorian justice system was negligent in dealing with this case and
committed errors at trial that led to the acquittal of the accused. The
State does not accept that Mr. Almeida’s death was caused by the actions
of the police. 3.
In this report the Commission concludes that the case meets the
admissibility requirements set forth in Articles 46 and 47 of the American
Convention. The Commission has therefore decided to declare this case
admissible, to notify the parties of that decision, and to continue
analyzing its merits with respect to the alleged violations of Articles 4,
5, and 8 of the American Convention. In addition, the Commission has
decided to publish this report.
II.
PROCESSING BY THE COMMISSION
4.
The Commission received this complaint on November 8, 1994. On
March 27, 1995, notes were sent to the State and to the petitioner, and
the case was opened. On August 3, 1995, the State replied that it did not
have the facts necessary to provide a reply. The IACHR again asked the
State to provide information on August 11, 1995. On September 18, 1995,
the State submitted its first reply. Processing continued, with
information and comments being forwarded to both parties. On May 5, 1999,
the IACHR suggested that friendly settlement proceedings could begin. The
petitioner accepted this proposal on May 11, 1999. As of the date of this
report, February 22, 2001, the State has not replied.
III.
POSITIONS OF THE PARTIES
A.
Position of the Petitioner
5.
On May 31, 1988, Mr. Almeida, aged 26, a messenger-boy for the
INDEGA (Coca Cola) company in Quito, was arrested, along with two
co-workers, after an accusation that a sum of money (USD $5,900) had been
stolen was made by the company’s head of security, Gen. Francisco Freile
del Castillo (ret.), a former police chief. The petitioner claims that the
victim and another two detainees were taken to the Criminal Investigation
Service in Pichincha (SIC-P). Lt. Juan Mosquera Sosa, currently under
arrest for his involvement in the Restrepo Arismendy case, took charge of
the investigation, along with Police Officers Víctor and Manuel Soto
Betancourt, who also happened to be brothers.
6.
The petitioner claims that, on June 2, 1988, while the
investigation was still in process, Marco Almeida Calispa died as a result
of the torture inflicted on him by the Soto Betancourt brothers. According
to the petitioner, another detainee told the Court of Constitutional
Guarantees that on June 2, 1988, he was taken from his cell, with a
blindfold over his eyes and his hands tied, after which he was hung from
his thumbs and beaten. One of the officers covered his head with a
gas-filled hood and almost asphyxiated him. This witness stated that at
2:30 p.m. on June 2, 1988, he heard Lt. Sosa give the order for Marco
Almeida to be brought to the room where his own torture had taken place.
He said that “they left the door ajar” and that he was able to see the
torture being inflicted, using the same methods as had been used on him,
after which they closed the door and he was unable to see any more. On
June 3, 1988, in response to his inquiries about Almeida’s whereabouts,
he was told, by some officers, that Almeida had been released and, by
others, that he had been taken to hospital. The petitioner claims that
during Marco Almeida’s interrogation, Víctor Soto Betancourt (Officer
138) went out to “have a few beers outside the SIC-P complex and, after
returning to the room where Marco Almeida was, ran out in desperation to
get a bucket of water to try and revive him; however, it was too late,
because the gas-filled hood placed over his head had caused his death.”[1]
7.
The petitioner claims that the police report gives a contradictory
version of events: it states that death occurred on the road to Conocoto,
where Mr. Almeida, the allegedly confessed thief of the USD $5,900, was
headed. According to this official version, while in police custody on his
way to recover the money, Almeida went into convulsions. He was taken to
Eugenio Espejo Hospital where, according to the police, he died. However,
according to the petitioner, the hospital certificate states that the
victim was dead upon arrival,[2]
and a nurse reported that Officer 138, Víctor Soto Betancourt, who
delivered the body, said that he did not know the person’s identity and
that the corpse had been found in Conocoto.
8.
That same day, June 2, 1988, according to the police report, an
autopsy was performed by forensic pathologists José Vergara and Víctor
Montalvo. The final report was conditional on the results of tests on
samples sent to the laboratory, but those procedures, according to the
petitioner, were performed with inexplicable negligence, in that samples
of certain important organs were not submitted for analysis. The
petitioner also states that the pathologists’ conclusion supported the
police version of events, in which the officers claimed that Mr. Almeida
could have ingested toxic matter in his food. In the autopsy report, the
forensic pathologists concluded that: [The]
apparent cause of death [was the] ingestion of an organic-phosphoric
substance which, because it is highly toxic, rapidly causes unstoppable
vomiting in the victim; in this case, because his stomach was full, the
trachea was blocked by alimentary matter, leading to asphyxiation, and
this was the necessary and apparent cause of his violent death. 9.
The petitioner also
states that further to the investigations, the Court of Constitutional
Guarantees asked the holder of the pathology chair at Central University,
Dr. Galo Hidalgo, to analyze the autopsy report. He remarked on the
absence of important evidence and the contradictions surrounding the cause
of Marco Almeida’s death in the autopsy report. Dr. Hidalgo noted that
the autopsy was performed a full 18 hours after the victim’s death, even
though the body was delivered to the morgue at 5:20 p.m. on June 2, 1988,
the day the victim died. The physicians responsible for the autopsy
attempted to justify the shortcomings that Dr. Hidalgo detected by arguing
that there was a shortage of proper instruments for forensic practice in
Ecuador. Dr. Hidalgo concluded that the information provided was
inadequate for reaching a firm conclusion regarding the cause of Mr.
Almeida’s death.[3]
10.
The petitioner claims that the autopsy report was the main evidence
in the dismissal, by the First Police District Court, of the attempted
prosecution of the two police officers and in the conclusion those
proceedings reached, which held that Marco Almeida “did not die as a
result of the torture he suffered in life” and thus acquitted the two
officers in whose custody Marco Almeida had been held. 11.
The petitioner reports that the victim’s relatives filed a
complaint for the illegal death of Marco Almeida with the Fifth Police
Precinct. This complaint, however, disappeared. Another police precinct
subsequently initiated proceedings, and the case was passed on to the
First Criminal Court of Pichincha. On January 23, 1989, the First Criminal
Judge ordered the arrest of the Soto Betancourt brothers, but the police
authorities did not obey the court’s order. 12.
On April 11, 1989, the Judge of the First Police District asked the
First Criminal Judge to disqualify himself from hearing the case; the
matter was then transferred to the Superior Court of Justice for a ruling
on jurisdiction. 13.
The petitioner filed a claim with the Court of Constitutional
Guarantees which, on September 21, 1989, decided to instruct “the Police
Chief, in pursuit of his specific functions, to order police officers to
adapt their procedures to the provisions of law and the Constitution,
particularly as regards respect for human rights.” 14.
The petitioner reports that the Superior Court disqualified itself
from the jurisdiction hearing; consequently, the case was passed on to
Ecuador’s Supreme Court of Justice, where no action was taken for a
period of two years. As a result of this, claims the petitioner, important
procedures were delayed, such as an examination of the crime scene which,
in the meantime, had been dismantled and remodeled. On February 10, 1992,
the Second Circuit of the Supreme Court of Justice resolved the
jurisdiction dispute in favor of the First Judge of the First Police
District who, on May 24, 1994, called for a full trial and issued
documents indicting the accused police officers. On November 21, 1994, the
First Police District Court revoked the indictment and ordered a
definitive dismissal of the charges made against the accused.
B.
Position of the State 15.
In its reply to the complaint, the State maintains that the ruling
of the First Police District Court established “that the cause of the
violent death [of Marco Almeida] was the regurgitation of alimentary
matter and the consequent asphyxia, produced by the ingestion of a highly
toxic phosphoric substance, in connection with which the accused have been
cleared of responsibility.” 16.
Ecuadorian police report Nº 913-SICP, dated June 2, 1988, claims
that the victim was leading the police officers to the location of the
stolen money when: unexpectedly
we saw the detainee Almeida Calispa go into convulsions and lose
consciousness; we therefore immediately returned to the city and went to
Eugenio Espejo Hospital so he could be given timely medical attention;
however, upon arrival there, the preparations for a preliminary
examination indicated that he had just died, probably of a heart attack. 17.
The State claims that Mr. Almeida’s death was due to causes
beyond the officers’ control, as shown in the police report and
confirmed by the autopsy. According to the State, prior to his arrest Mr.
Almeida had ingested a toxic substance which, ultimately, led to his
death.
IV.
ANALYSIS OF ADMISSIBILITY A.
Competence of the Commission Ratione Materiae, Ratione
Personae, Ratione Temporis,
and Ratione Loci 18.
The Commission has competence ratione materiae, in that
the allegations set forth in the petition, if proven true, could
constitute violations of Articles 4, 5, and 8 of the American Convention. 19.
Under Article 44 the petitioner is entitled to submit complaints to
the Commission, and the victim in this case is an individual with respect
to whom Ecuador had undertaken to guarantee and respect the rights
enshrined in the American Convention. As regards the State, the Commission
notes that Ecuador has been a state party to the American Convention since
ratifying it on December 28, 1977. The Commission therefore has competence
ratione personae to examine the
complaint. 20.
The IACHR has competence ratione temporis in that the sequence of events began in June 1988,
when the obligation of respecting and ensuring the rights enshrined in the
American Convention was already in force for the Ecuadorian State. 21.
The parties have no doubts or disagreements about the fact that the
incidents described in the petition took place in Ecuadorian territory, in
an area under the jurisdiction of the State. Thus, the competence ratione
loci of the Commission is clear.
B.
Other Requirements for Admissibility a.
Exhaustion of Domestic Remedies 22.
The Commission first of all notes that the State has offered no
explanation for the two years it took to settle the question of the
jurisdiction of the courts involved with the complaint, a period of time
longer than was strictly necessary. On February 10, 1992, the Second
Circuit of the Supreme Court of Justice resolved the jurisdiction dispute
in favor of the First Judge of the First Police District who, on May 24,
1994, called for a full trial and issued documents indicting the accused
police officers. However, on November 21, 1994, the First Police District
Court revoked the indictment and ordered a definitive dismissal of the
charges made against the accused. Thus, domestic remedies were exhausted
with respect to the police officers’ criminal responsibility in the
death of Marco Almeida.
b.
Timeliness of the Petition
23.
Article 46(1)(b) of the Convention states that a petition must be
lodged within a period of six months from the date on which the petitioner
is notified of the final judgment exhausting domestic remedies. The
petitioner lodged the case with the Commission on November 8, 1994—that
is, five months and 16 days after the First Judge of the First Police
District called for a full trial and 13 days before the final judgment.
The Commission notes that petitioner submitted the petition ad
cautelam, with reservations about possible delays in resolving the
case that could potentially cause violations of due process. Understanding
that the time it took to rule on the jurisdiction issue meant that upon
lodging the complaint the petitioner had legitimate doubts about the time
it would take to process the case, and because the petition was in any
event lodged within the six-month period, the Commission holds that the
terms of Article 46(1)(b) have been met. In addition, the Commission
believes that the State tacitly accepted that the petition was lodged
within the period set by Article 46.1.b by failing to argue otherwise. c.
Duplication of Proceedings and Res
Judicata
24.
The Commission understands that the substance of the petition is
not pending in any other international proceeding for settlement, and that
it is not substantially the same as any petition previously studied by the
Commission or other international body. Hence, the requirements set forth
in Articles 46(1)(c) and 47(d) of the Convention have also been met.
d.
Characterization of the Alleged Facts
25.
The Commission holds that the petitioner’s claims describe events
that, if proven true, could tend to establish a violation of the rights
protected by Articles 4, 5, and 8 of the American Convention; thus, the
requirements of Article 47(b) have been satisfied.
V.
CONCLUSION
26.
Based on the above legal and factual considerations, the Commission
concludes that the case at hand satisfies the admissibility requirements
set forth in Articles 46 and 47 of the American Convention and, without
prejudging the merits of the case, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS DECIDES:
1.
To declare this case admissible with respect to Articles 4, 5, and
8 of the American Convention.
2.
To transmit this report to the petitioner and to the State.
3.
To continue with its analysis of the merits of the case.
4.
To publish this report and to include it in the Commission’s
Annual Report to the General Assembly of the OAS.
Done and signed at the
headquarters of the Inter-American Commission on Human Rights, in the city
of Washington, D.C., on the 22nd day of February, 2001. (Signed): Claudio
Grossman, Chairman; Juan Méndez, First Vice-Chairman; Marta Altolaguirre,
Second Vice-Chairman; Commissioners Hélio Bicudo, Robert K. Goldman, and
Peter Laurie. [ Table of Contents | Previous | Next ]
*
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate
in the discussion of this case in compliance with Article 19 of the
Commission’s Regulations. [1]
Submission made by Sonia Arauz, Almeida’s widow, Quito, 29/Aug/88. [2]
“We do not know for certain the time of Marco Vinicio Almeida
Calispa’s death.” Dr. Galo A. Hidalgo, Study and Analysis of Autopsy Report: Mr. Marco Vinicio Almeida Calispa. [3]
“I can state that, in my opinion, the information available is
insufficient for reaching firm conclusions about the causes and
mechanics of Mr. Marco Vinicio Almeida Calispa’s death.” Dr. Galo
A. Hidalgo, Study and Analysis
of Autopsy Report: Mr. Marco Vinicio Almeida Calispa.
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