...continued

          55.          Thus, Article 114 of the Criminal Code of Ecuador, in effect when Dayra María Levoyer was detained, establishes that:

Persons who, having been kept in detention for a time equal to or greater than one third of the period established in the Criminal Code as the maximum sentence for the offense with which they are charged, have neither had their case discontinued nor been committed to trial, shall be immediately released by the judge hearing the case.

Persons who, having been kept in detention for a time equal to or greater than one half of the period established in the Criminal Code as the maximum sentence for the offense with which they are charged, have not been sentenced, shall be released immediately by the criminal court hearing the case.

These provisions do not include persons charged with offenses under the Narcotics and Psychotropic Substances Act.

          56.          The Commission notes that the domestic law provides for four to eight years of imprisonment for the offenses of asset laundering, transfer of assets, and acting as a “front.”^[15]   Dayra Levoyer Jiménez was detained on June 21, 1992, and was kept in preventive detention for more than six years, a period equivalent to more than one third and more than one half of the maximum corresponding sentences.

          57.          However, the proceedings against Mrs. Levoyer Jiménez came within the exception provided in the last sentence of Article 114 of the Criminal Code of Ecuador and thus she was unable to benefit from the maximum periods of preventive detention established in the legislation.  This exception, however, has now been invalidated both internally and internationally. In a judgment rendered on November 17, 1997, in the Suárez Rosero Case, the Inter-American Court declared that the wording of the final paragraph of Article 114 of the Criminal Code of Ecuador was a violation de jure of the obligation contained in the Convention to adopt the necessary measures in domestic law to render effective the right to personal liberty established in Article 7(5) of the American Convention.^[16]

          58.          As the Inter-American Court has stated, although domestic law establishes objective conditions for the release of individuals imprisoned without a sentence, the exception established in the final paragraph of Article 114 deprives an entire category of persons in detention of the enjoyment of a right solely on the basis of the offense with which they are charged.^[17]

          59.          Moreover, as reported to the Commission in the present case, on December 24, 1997, a Plenary Session of the Constitutional Court of Ecuador declared that the last part of Article 114 of the Criminal Code was unconstitutional. This declaration made it possible to apply the maximum period of preventive detention to cases such as that of Mrs. Levoyer Jiménez.

          60.          As to the parameters of Article 7(5) of the Convention, the Commission has established that whenever preventive detention is extended beyond the period stipulated in domestic law, this should be considered prima facie illegal, regardless of the nature of the offense in question and the complexity of the case. In such circumstances, the burden of proof in justifying the delay rests with the State.^[18]

          61.          In the instant case, the declaration that the last part of Article 114 was unconstitutional did affect the deprivation of liberty, until six months later.  In fact, on June 16, 1998, Mrs. Levoyer Jiménez was released as a result of a decision on one of the many writs of habeas corpus filed. At that time, the Second Division of the Constitutional Court considered the terms of preventive detention established in the Criminal Code to have been fulfilled through the application of the precedent noted. Consequently, for a period of six months, Mrs. Levoyer Jiménez remained in preventive detention, without any domestic law justifying her detention, in direct violation of the norm contained in Article 7(5) of the Convention, which establishes that every individual must be judged within a reasonable time or be set free, as well as Article 7(2) which stipulates that detention beyond the period specified in domestic law constitutes illegal detention.

          62.          Moreover, the Commission concludes that although the exception contained in Article 114 of the Ecuadorian Criminal Code was declared unconstitutional on December 24, 1997 (a ruling which benefited all individuals accused of offenses under the Narcotics and Psychotropic Substances Act), the fact that Dayra María Levoyer Jiménez was not released until six months after this ruling was made, is a violation of Article 2 of the American Convention because the State did not adopt the adequate measures under domestic law to render effective the right contained in Article 7(5) of the American Convention.

63.          Lastly, the fact that Mrs. Levoyer Jiménez was not arraigned in Court immediately after she was detained is a further violation of Article 7(5).

          iii.       Incommunicado detention, personal liberty, and Habeas Corpus – Violation of Articles 7(6) and 25

          64.          The petitioner maintained that, when she was detained, Mrs. Levoyer Jiménez was taken to the former SIC facilities, where she was kept incommunicado in an underground cell for 39 days. In its submission on the merits of the case, on May 18, 2000, the petitioner alleged that Mrs. Levoyer Jiménez’s incommunicado detention lasted from her detention on June 21, 1992, at the Police Station, until July 30, 1992, the date on which she was taken to a prison.  The State did not dispute this assertion in its response.

          65.          The Inter-American Court has established that:

Incommunicado  detention is an exceptional measure the purpose of which is to prevent any interference with the investigation of the facts. Such isolation must be limited to the period of time expressly established by law. Even in that case, the State is obliged to ensure that the detainee enjoys the minimum and non-derogable guarantees established in the Convention and, specifically, the right to question the lawfulness of the detention and the guarantee of access to effective defense during his incarceration.^[19]

66.            Article 28 of the Constitution of Ecuador provides that:

Any person who believes that he is being unlawfully deprived of his liberty may seek the remedy of habeas corpus. He may exercise this right himself or through another person, without the need for a written request, before the Mayor, under whose jurisdiction he finds himself or whoever is serving as Mayor.  The municipal authority shall order immediately that the accused appear before him, and the order for the deprivation of liberty will be shown.

          67.          While she was held incommunicado, Mrs. Levoyer Jiménez did not have the opportunity to have her detention reviewed by a court. In addition, after her period in incommunicado detention was over, she presented numerous writs of habeas corpus without success. Although access to recourse does not imply that a favorable result is guaranteed,^[20] the right of access to a fair trial in this case required that a judge review the reasons for the detention and whether it was consistent with international law, something that did not occur when any of the writs of habeas corpus were filed.

          68.          Accordingly, the Commission finds that Mrs. Levoyer Jiménez’s incommunicado detention constituted a violation of Article 7(6) of the American Convention since it prevented the person detained from having contact with the outside world and did not allow her to exercise the remedy of habeas corpus.

          69.          The petitioner further alleges that the lack of a response or the delay in responding to the writs of habeas corpus filed in the present case violates the guarantees provided in Articles 7(6) and 25 of the American Convention. The State has not responded expressly to this allegation.

          70.          Article 7(6) of the Convention provides that:

Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

          71.          Article 25 of the Convention states that:

Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

          72.          Article 458 of the Code of Criminal Procedure establishes that whenever an individual who has been detained applies to a competent court to request release, the judge must immediately order the appearance of the individual and after evaluating the necessary information, is required to decide on the request within the next 48 hours.

          73.          The guarantee of access to simple and prompt recourse provided in the Convention is not satisfied by the mere formal existence of suitable remedies to ensure an order for release. The Court has noted that such remedies must be effective given their purpose of obtaining a prompt decision on the question of the legality of the arrest or the detention.^[21]

          74.          These rights constitute one of the basic pillars of the rule of law in a democratic society.^[22]

          75.          The documentary evidence attached to the file indicates that the petitioner repeatedly appeared on behalf of Mrs. Levoyer Jiménez before the competent judges with the request that the precautionary measure be lifted or that her illegal detention be terminated.  In each case, with the exception of the decision of June 22, 1998, which ordered her release, the writs of habeas corpus were ignored or denied with delay.

          76.          With respect to Article 25 of the American Convention, the Court ruled as follows in the Suárez Rosero Case:

Article 25 of the American Convention provides that everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal. The Court has ruled that this provision constitutes one of the fundamental pillars not only of the American Convention, but also of the very rule of law in a democratic society in the sense of the Convention.

Article 25 is closely linked to the general obligation contained in Article 1(1) of the American Convention, in assigning protective functions to the domestic law of States Parties. The purpose of habeas corpus is not only to ensure respect for the right to personal liberty and physical integrity, but also to prevent the person's disappearance or the keeping of his whereabouts secret and, ultimately, to ensure his right to life.  (Castrillo Páez Case, Judgment of November 3, 1997. Series C No. 34, paras. 82 and 83)..^[23]

          77.          Therefore, the Commission, having weighed the evidence furnished by the parties, concludes that Dayra María Levoyer Jiménez’s right to a simple and prompt recourse in order to protect her basic rights, pursuant to Articles 7(6) and 25 of the American Convention, was violated.

          78.          In addition, the Commission considers it necessary to examine the provisions of Article 28 of the Ecuadorian Constitution, transcribed above, which provide that the right of habeas corpus be modified to conform to the provisions of the American Convention. Article 7(8) of the Convention clearly states that: “Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention” (emphasis added).  However, the Ecuadorian Constitution establishes that the Mayor, as the head of the municipal administration,^[24]   is the one who decides on the legality or illegality of an arrest.

          79.          The review of the legality of a detention implies confirming, not only formally but also substantively, that the detention conforms to the requirements of the judicial system and that it does not violate any of the detained person’s rights. That such confirmation is carried out by a judge, invests the proceeding with certain guarantees that are not duly protected if the decision is in the hands of an administrative authority, who lacks the proper legal training and the authority to exercise judicial functions.

          80.          The danger in having decisions of this kind left in the hands of a municipal authority has been noted previously by the same Ecuadorian Constitutional Court, which maintained that:

The lawfulness of the detention is an important aspect of the remedy of habeas corpus, and this is what must be examined; not the apparent lawfulness but the true lawfulness, in substance or in form [emphasis in the original]. In most cases, Mayors, most probably because they are unaware of constitutional provisions must limit themselves to verifying whether the person detained is present at the order of a judge and whether the latter has issued, even illegally and after the statute of limitations has passed, an order of preventive detention, and solely on this basis after a hearing denies the recourse of habeas corpus, which in substance implies ignorance of the significance of the right to liberty, as an important constitutional guarantee [emphasis added].^[25]

          81.          This constitutional provision violates Article 7(6) of the American Convention. The Commission considers it essential for the State of Ecuador to take the necessary steps to reform its legislation in this area as well as to take whatever action is necessary to implement this legislation immediately.

iv.       Incommunicado detention. Cruel, inhumane, and degrading treatment. Violation of Article 5(2a)

          82.          The petitioner also alleged that the prolonged duration of the state of incommunicado detention to which Mrs. Levoyer Jiménez was subjected constituted cruel and inhumane treatment pursuant to Article 5(2) of the American Convention.  This Article states:

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.

          83.          The Inter-American Court has considered that the mere fact that a person has been deprived of any communication with the outside world allows it to conclude that such person was subjected to cruel and inhuman treatment, and even more so when it is proven to be in violation of domestic law.^[26]

          84.          Hence, the Inter-American Court has maintained that:

One of the reasons that incommunicado detention is considered to be an exceptional instrument is the grave effect it has on the detained person. Indeed, isolation from the outside world produces moral and psychological suffering in any person, places him in a particularly vulnerable position […].^[27]]

          85.          Therefore, based on its assessment of the evidence presented by the parties, the Commission concludes that the prolonged incommunicado detention to which Dayra María Levoyer Jiménez was subjected was a violation of the right established in Article 5(2) of the American Convention.

          2.          Respect for judicial protection

          86.          The petitioner has indicated that in the present case the State was unable to guarantee Mrs. Levoyer Jiménez’s fundamental rights from the time she was detained in June 1992, and that the guarantees established in Article 8 of the American Convention were violated. In its admissibility report, the Commission maintained that “… a decision on 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 treatment of the merits of the case…”

          87.          The Commission turns now to an examination of the facts in light of the guarantee of a trial within a reasonable period and the general principles of a presumption of innocence and non bis in idem, as expressed in the American Convention.

i.          The determination of guilt within a reasonable time - Violation of 
            Article 8(1)

          88.          The petitioner maintained, during the instant case, that the delay in the proceedings against Mrs. Levoyer Jiménez violated her right to be tried within a reasonable period.

          89.          Article 8(1) of the American Convention states:

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him […]

          90.          The purpose of the principle of “reasonable time” to which this Article refers is to prevent persons accused of an offense from remaining in that situation indefinitely. In criminal matters, the time covers the entire proceeding including any appeals that may be filed.^[28]

          91.          As to whether the duration of a case is reasonable, in the jurisprudence of the Commission and the Inter-American Court, the reasonableness of the duration of a case has been developed to mean that it must be evaluated in light of the three following criteria: the complexity of the matter, the procedural activity of the individual concerned, and the conduct of the judicial authorities.^[29]

          92.          With respect to the duration of proceedings, the State maintained in its response of January 26, 2000, that:

…the reasonableness of a measure or a period needs to be evaluated in its own specific context, and the State has resolved this case, within a period in keeping with the type of trial involved, within the scope of the possibilities at its disposable. Accordingly, the State of Ecuador cannot be accused of delaying the decision in the matter of Mrs. Dayra María Levoyer Jiménez, when, despite its complexity, it has moved rapidly through the competent tribunals. Given the fact that the periods within which the State acted to resolve the domestic proceedings are within the limits of reasonableness established by the Court and the Commission, it cannot be charged with having violated the guarantee established in Article 8.1.

          93.          The Commission is of the view that the State’s assertion is not sufficient to justify the reasonableness of the period. In fact, the State limits itself to indicating what, in its judgment, are the requirements of reasonable time, and concludes that in the instant case the period was effectively reasonable without providing any grounds that would lead to such a conclusion.

          94.          In the present case, the detention of Mrs. Levoyer Jiménez on June 21, 1992, marks the beginning of multiple proceedings based on the same facts and evidence. According to the information furnished to the Commission, this case has not yet concluded.

          95.          The Commission is of the view that the nearly eight years that have elapsed since the investigation began is well beyond the principle of reasonable time within which to resolve a case, especially in light of the fact that according to Ecuadorian law even when a provisional dismissal has been issued, the case remains open for six years, a period during which the investigation may be reopened if fresh evidence is produced.^[30]  This situation is exacerbated when it is considered that to date proceedings against the accused have been dismissed in all of the cases that have concluded.

          96.          Therefore, the Commission, having weighed the evidence furnished by the parties, concludes that the State has violated Dayra María Levoyer Jimenez’s right to be tried within a reasonable time, in accordance with Article 8(1) of the American Convention.

          ii.          The principle of presumption of innocence - Violation of Article 8(2)

          97.          The petitioner maintains that depriving Mrs. Levoyer Jiménez of her liberty is a violation of the principle of presumption of innocence established in the American Convention. It notes that in the present case the imposition of preventive detention for an indefinite period was tantamount to anticipating the punishment.

          98.          The State has not presented its position on the principle of presumption of innocence in the instant case.

          99.          Article 8(2) of the American Convention states that:

Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.

          100.          The Inter-American Court has ruled that the very purpose of these judicial guarantees is founded upon the principle that a person is innocent until proven guilty in a final judicial decision.^[31]   Therefore, the universally accepted general principles of law prohibit anticipating the punishment before sentencing.  Ignoring these rules would run the risk, as in the instant case, of restricting for an unreasonable time the liberty of a person whose guilt has not been proven. It should be recalled that in this case Mrs. Levoyer Jiménez was deprived of her liberty for a period that exceeded one half the maximum penalty established for the offense of which she was accused and acquitted, and she continued to be detained even after her acquittal had been upheld.

          101.          Having considered the evidence presented by the parties, the Commission concludes, in the case of Dayra María Levoyer Jiménez, that the Ecuadorian State has violated the principle of presumption of innocence enshrined in Article 8(2) of the American Convention.

          iii.          Non bis in idem - Violation of Article 8(4)

          102.          In its submission of May 18, 2000, the petitioner alleged that the State of Ecuador violated the American Convention insofar as it initiated three sets of proceedings on the same facts and the same offense by three different courts in succession.

          103.          As noted by the petitioner, the first trial for asset laundering was instituted in 1992, with the first instance proceedings held before the President of the Superior Court, and the second instance before the Fourth Division of the same Court, which in April 1998 dismissed the case.

          104.          The second trial, also for asset laundering, was instituted in 1994 on the basis of an expanded report on the 1992 Operation Cyclone. The first instance proceedings were held before the President of the Superior Court and the second instance proceedings before the Second Division of the same Court, which in July 1999 dismissed the case.

          105.          The third trial for asset laundering was instituted in 1996, on the basis of a new expanded report on Operation Cyclone. These first instance proceedings were held before the First Criminal Court, and subsequently before the Eighth Court of Appeal, which in March 1999 issued a provisional dismissal. The case was appealed to the First Division of the Superior Court, which has not yet returned a decision.

          106.          It appears from the foregoing that Mrs. Levoyer Jiménez was tried simultaneously for the same offense of asset laundering and on the basis of these facts, on two occasions by the same judge (the President of the Superior Court of Quito), and on a third occasion by the Judge of the Eighth Criminal Court.

          107.          The Commission is of the view that such a situation, apart from disregarding principles of procedural economy, could only cause harm to Mrs. Levoyer Jiménez, who was compelled to defend herself before three different courts and the corresponding appeal courts, during all three sets of proceedings. The Commission considers that in the instant case the requirement of responding to the parallel proceedings constituted a serious interference with the exercise of the right to a defense and legal certainty in judicial proceedings.

          108.          As to the alleged violation of the American Convention, Article 8(4) states:

                        An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.

          109.          The purpose of codifying the principle of non bis in idem is to establish a safeguard for persons acquitted in a nonappealable decision so that they may not be tried in new proceedings for the same offense for which they were tried during the first proceedings.

          110.          It has been determined that Mrs. Levoyer Jiménez was tried in three sets of proceedings for the same offense of asset laundering. Although these proceedings were instituted in parallel, the different courts rendered their decisions on the merits of the case successively, confirming a triple violation of the principle established in the Convention. The first violation occurred with the second proceedings, when the President of the Superior Court neglected to close the case after having seen that the Fourth Division of the Court dismissed the case in April 1998 in issuing  judgment on appeal in the first case. The second violation occurred when the Eighth Criminal Court closed neither the third case nor the second when the first judgment was rendered. The third violation took place because the appeal court, that is the First Division of the Superior Court, has not resolved the matter to the present time.

          111.          This violation of the principle non bis in idem was recognized in the judgment of the Second Division where it was maintained that:

  … having to do with … an expanded investigation report … of the investigation of Operation Cyclone, judges and courts run a real risk of violating the constitution and the law by judging a person more than once for the same offense or of continuing to institute proceedings against a group of persons as often as expanded reports of a police investigation which apparently has not concluded are prepared by continuing such reports ad infinitum, an act that violates constitutional guarantees and precepts, particularly what is established in paragraph 16 of Article 24 of the Constitution …^[32]

          112.          Based on the assessment of the evidence produced by the parties, the Commission concludes that the State violated Dayra María Levoyer Jiménez’s right not to be tried more than once for the same offense, as established in Article 8(4) of the American Convention.

          3.          Violation of the right to own property -  Violation of Article 21

          113.          The petitioner alleged that in the instant case Article 21 of the Convention was also violated insofar as the goods that were seized when Mrs. Levoyer Jiménez was arrested have not yet been returned to her.

          114.          In resolving the issue of the admissibility of the present case, the Commission considered that the analysis of the present issue concerned the merits of the case and therefore decided to defer its decision for the present report.

          115.          According to the petitioner’s submission, when the charge of acting as a “front” was dismissed, it was requested that the many goods seized at the time of her arrest be returned to her. The judge denied the request, on grounds that the matter was still before the Courts, and that the goods would be returned when a final decision was taken.  The petitioner alleges that this final decision could take more than five years, and that the goods would not be returned if the proceedings are dismissed, thus constituting a violation of Article 21 of the Convention.

          116.          The Ecuadorian Code of Criminal Procedure establishes the res judicata effect of the (definitive) dismissal of proceedings, but not those that are (provisionally) dismissed. The petitioner alleges that even if the case had been definitively dismissed, the result would not be a judgment and therefore the goods would never be returned.  The relevant sections of Article 110 of the Narcotics and Psychotropic Substances Act state that “If the person charged with an offense is acquitted, any property he owns that has been seized shall be restored to him … when so ordered by the court once the precautionary measures have been lifted…”

            117.          The Commission is of the view that the provisions cannot be construed to mean that a definitive dismissal is different from an acquittal because it is a decision that concludes the proceedings definitively and puts a stop to further investigation of the accused for the same facts.   A violation of Article 21 would require a finding in the present case that the State refused to return the property once a final decision has been rendered, a case in which the right to property would be violated.

          118.          The Commission considers, therefore, that the petitioner has not presented facts that if true, would constitute a violation of the Convention, and therefore has decided

not to admit the complaint on this point.

V.     ACTIONS TAKEN FOLLOWING THE ADOPTION OF REPORT N^o  81/00

                        119.          On October 5, 2000, during the course of its 108^th  period of sessions, the Commission approved Report 81/00, pursuant to Article 50 of the American Convention. Report 81/00 was transmitted to the Ecuadorian State on October 26, 2000 with the corresponding recommendations and was granted a period of 60 days within which to inform the Commission regarding the measures it had taken in order to comply with these recommendations.

          120.          Since October 26, 2000, the State has not been in contact with the Commission regarding the instant case, nor does the Commission have information regarding the State’s having taken any of the recommendations mentioned above.

          VI.          CONCLUSIONS

        121.        On the basis of the foregoing analysis of the facts and the law, the Inter-American Commission on Human Rights hereby concludes that with respect to Dayra Maria Levoyer Jimenez, the State of Ecuador has violated the right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to due process (Article 25), together with the general obligation to respect and ensure set forth in Article 1(1) of the American Convention.

          122.          The Commission further considers that the complaint relating to the violation of Article 21 of the American Convention is not admissible because the evidence presented does not constitute a violation of the Convention.

VII.     RECOMMENDATIONS

123.          Based on the foregoing considerations presented in the present report and the conclusions reached, the Inter-American Commission on Human Rights recommends that the State of Ecuador:

   1.          Proceed to grant full reparations, which involves granting adequate compensation to Mrs. Dayra Maria Levoyer Jimenez; 

   2.          Order an investigation to determine responsibility for the violations detected by the Commission and eventually to punish the individuals responsible; 

   3.          Take such steps as are necessary to reform habeas corpus  legislation as indicated in the present report, as well as to enact such reforms with immediate effect.

VIII.          PUBLICATION

          124.          On February 28, 2001, the Inter-American Commission on Human Rights transmitted Report N^o  16/01–the text of which appears above—to the Ecuadorian State and to the petitioners, pursuant to Article 51(2) of the American Convention and granted the State a period of one month in order to comply with the recommendations therein.  Until the date of the approval of the present report no response has been received from the Ecuadorian State.

          125.          In light of the above considerations and the provisions of Article 51(3) of the American Convention, the Commission decides to reiterate the conclusions and recommendations contained in this report, to make them public and to include them in its Annual Report to the OAS General Assembly.  The Commission, in compliance with its mandate, will continue to evaluate the measures taken by the State of Ecuador in relation with the above mentioned recommendations, until they have been completely complied with.

           Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the 14^th day of the month of June in the year 2001.  (Signed) Claudio Grossman, Chairman; Juan Mendez, First Vice-President; Marta Altolaguirre, Second Vice-President; Commissioners:  Helio Bicudo, Robert K. Goldman; and Peter Laurie.