REPORT Nº 10/95CASE 10.580 ECUADOR September 12, 1995
I. BACKGROUND
1. The Inter-American
Commission on Human Rights received a communication on August 29, 1988, alleging
that:
On October 14, 1985, Marines entered the house of Elena Ortíz in the
neighborhood of Isla Piedad Esmeraldas, where some young men were playing cards
(at approximately 4:00 a.m.). Under
the pretext of reviewing their identification documents, the Marines detained
the following persons: Manuel Stalin Bolaños Quiñonez, William España Ordoñez,
Miguel Mosquera Betancur, Bonifacio Angulo Ordoñez.
The last three of those named were freed the following day. They said that the Marines had taken them to Balao (Port) in
Esmeraldas, and there they were divided. Manuel
was taken to another part, and from that moment they have had no further news of
him. The family members of Manuel
Bolaños tried to interpose writs of habeas corpus, but these were
rejected. On July 13, 1990, the Commission initiated the processing
of this case, requesting that the Government of Ecuador provide information
relative to the material facts of the denunciation within 90 days.
2. According
to information submitted to the Commission by the petitioners in August of 1988
and June of 1990, family members and others had begun requesting information on
the whereabouts of Manuel Bolaños in the late afternoon of the day he was
detained. They approached
authorities of the Navy and the naval base at Balao, the Balao Port Authority,
the Minister of Interior and the Minister of Defense.
A telegram requesting an investigation of the disappearance of Manuel
Bolaños was sent on November 19, 1985 to the Ministers of Interior and Defense,
and to the Chiefs of the Criminal Investigation Service and Police Security.
Another telegram dated November 6, 1986 was directed to the Ministers of
Interior and Defense. Petitions for habeas corpus were presented
before the Mayor of Esmeraldas, and petitions were filed with the Special
Commission on Human Rights of the National Congress on January 6, 1987, and the
Court of Constitutional Guarantees on April 21, 1988.
The petitions for habeas corpus were denied.
One such habeas corpus petition, filed by Mr. Bolaños'
mother on January 8, 1986, had not been processed as of January 6, 1987.
All of these measures had been unsuccessful in obtaining information.
In 1987 and 1988 individual petitioners had unsuccessfully petitioned the
Judge of the Third Naval Zone for permission to review the case file and any
judgments issued in this matter.
3. On September 24,
1990, the Commission received additional information from the petitioners, which
may be summarized as follows:
a. At the
time of his detention, Manuel Bolaños was 22 years old, single, and a
bricklayer by profession. Petitioners
allege that he was illegally detained by Marines--members of a special
investigation group--and held on Isabel Island, Esmeraldas.
They further allege that he was tortured, and died "from the effects
of interrogation" while held in custody by state agents on October 14,
1985. The petitioners state that
they first learned on June 9, 1987 that Mr. Bolaños was dead. The petitioners had contacted the United Nations Human Rights
Commission about the disappearance of Manuel Bolaños, and on that date the
Human Rights Commission transmitted the response received from the Government.
As stated therein, Mr. Bolaños had died, and an investigation into the
circumstances and possible responsibility had been initiated on October 29,
1985.
b. Petitioners
set forth that Mr. Bolaños had been detained in connection with an
investigation into the October 12, 1985 assassination of Lieutenant Arturo
Sotomayor at the naval base at Balao. The
investigation was carried out by Naval Intelligence agents, and two police
criminologists. The petitioners base these contentions on what they describe
as the October 19, 1987 declaration given by Naval Station Commander Gracian
Villota before the Military Criminal Court of the Third Naval Zone.
(Petitioners quote the declaration, but did not provide a copy.)
Mr. Velez Carriel, a suspect in that case detained at Balao, had at 11:00
p.m. on October 15 admitted his participation, and had inculpated others
including Mr. Bolaños. An
operation was mounted at 1:00 a.m. on October 16 to capture those inculpated. These assertions are based on the October 19 declaration
noted above, and communication ESTESM-GVM-001-S, discussed below.
Petitioners quote Commander Villota's October 19, 1987 statement as
indicating that he followed the group carrying out the manoeuver in a separate
jeep, accompanied by Officer Carlos Romero and a police official from Quito.
Petitioners report that in what they describe as official communication
number ESTESM-GVM-001-S, of October 20, 1985, Commander Villota had written to
the Commander of the Third Naval Zone that Manuel Bolaños, also known as "Pedrito,"
had been detained on October 16, 1985 at 4:00 a.m., pursuant to having been
accused of participation in the assassination of Officer Sotomayor.
After having been identified by Mr. Velez, Mr. Bolaños was interrogated
by Officer Morales and intelligence agents.
(Petitioners quote the communication, but did not provide a copy.)
c. Also
referred to, although not produced, is a declaration given by Naval Commander
Hugo Unda Aguirre on December 21, 1988 [which notes that he assumed his post as
of November 7, 1985 - almost one month after the assassination of Officer
Sotomayor] in which he refers to an emergency operation carried out in
Esmeraldas in response to the Sotomayor homicide.
Special security measures were taken, based on the perception that the
area harbored revolutionary activity and armed persons, and that such persons
had carried out the homicide. Petitioners
quote the declaration as describing the strong sense of camaraderie existing
among those in the Navy, and the consequent need felt by all to rigorously
investigate the Sotomayor homicide in order to protect "the honor of the
institution." Petitioners
report that in the declaration Commander Unda Aguirre acknowledges that the
foregoing factors contributed to "a small" exaggeration relative to
security. He notes, however, that
corresponding legal processes had been initiated to correct the exaggerations,
and that there "exists a military justice to deal with any type of
exaggerations" that could be committed by the lower echelon officers.
d. Petitioners
note from the October 19, 1987 declaration of Commander Villota, that between
approximately 4:15 a.m. and 4:30 a.m. on October 16, 1985 he passed by the
second platform on the base (an administrative area), and noticed three
detainees lying face down, with their hands tied behind their backs, in a pool
of water that had formed from the intense rain falling at the time.
Afraid they would drown, he ordered that their positions be changed.
e. Petitioners
state that in official communication ESTESM-GVM-001-S, Commander Villota wrote
that according to reports received, Mr. Bolaños died from the "effects of
the interrogation," and that the agents who had been conducting the
interrogation had immediately buried his body.
Petitioners cite the October 19, 1987 statement of Commander Villota as
setting forth the recollection that he was informed of the death at 11:00 a.m.
on October 16 by Commander Assan, who had received the information from Officer
Morales at 6:30 a.m. The statement
records that Commander Villota then telephoned the base at Balao, but Officer
Morales was no longer there, having left for Quito. When Commander Villota inquired about the whereabouts of the
body, he was told that it had been buried.
Commander Villota questioned Commander Assan on this point, and was told
that those involved had said "I don't know," or "I don't remember
because I don't know the forest." Petitioners quote from but did not provide the October 19,
1987 statement of Commander Villota.
f. The
petitioners report that a military criminal process was initiated to investigate
the circumstances of the death of Mr. Bolaños.
Petitioners contend that in the order initiating the process, the
Military Criminal Judge of the Third Naval Zone had set forth that according to
his information, Mr. Bolaños had been captured on October 15, 1985 in relation
to the accusation of Mr. Velez Carriel. His
death occurred as members of Naval Intelligence were arranging to interrogate
him. The reason for his death was
unknown. Among other measures, the
Judge ordered that an autopsy be carried out.
In support of these contentions petitioners quote from, but did not
provide, the order opening the criminal process.
g. After
Commander Villota learned of the death and burial, petitioners allege that he
consulted others on how to handle the situation.
Petitioners assert that communication ESTESM-GVM-001-S records that,
given the "difficult and compromising situation," Commander Villota
had consulted Political Chief Ricardo Gutiérrez, who had counseled that it
would be best to leave the body where it was--to disappear the body and maintain
absolute silence about the matter. (Petitioners
quote from but did not provide this communication.)
h. Petitioners
contend that Mr. Gutiérrez advised that given the situation, with the
population upset by the "series of raids and illegal detentions"
carried out since the assassination of Sotomayor, it would be best to leave the
body where it was. Mr. Gutiérrez
reportedly reasoned that: handling the situation otherwise risked bringing the
facts to light; an autopsy would reveal the real cause of death; and any
maneuver that was done later would be easily identifiable and therefore very
compromising. In support of these
allegations petitioners cite but did not provide the October 19, 1987 statement
by Commander Villota. Petitioners
argue that the advice of the Political Chief to keep the body hidden because an
autopsy would establish the real cause of death is pertinent in leading to the
conclusion that Mr. Bolaños died from the effects of torture. Petitioners further contend that his participation
demonstrates the disposition of the authorities to obscure the true facts and to
effectively grant impunity to those involved.
i. Petitioners
report that Dr. Romero Herrera was instructed to obtain a false autopsy report,
which he did by means of bribery. They
allege that the sum of $200,000 (sucres) was paid for the false report, and that
Esmeraldas Police Commissioner Perlaza signed the false report.
In support of these allegations petitioners quote but did not provide the
October 19, 1987 statement of Commander Villota.
j. Petitioners
contend that Commander Gracian Villota made at least four official statements
about the facts concerning the apprehension, detention and death of Manuel Bolaños,
three of which had been directed by Third Naval Zone Judge Romero Herrera. They allege that he was ordered to change the first report,
and was then ordered to destroy it, and others he had made.
In one instance, petitioners assert that the Commander was ordered to
switch a report with one that had been made up by Officer Pimentel.
It was the fabricated report, petitioners quote the Commander as saying,
that was used to initiate the criminal process.
The petitioners contentions are based on text they quote as part of the
October 19, 1987 statement of Commander Villota.
k. Petitioners
recall from the above information that there were two police criminologists who
participated in the Sotomayor investigation.
The October 19, 1987 statement of Commander Villota is cited as recording
that these two agents were integrated into the special investigation team.
Petitioners assert that these two police agents were involved in the
interrogation of Mr. Bolaños and would have possessed information with respect
to the circumstances of his death. However,
in response to an inquiry from the Court of Constitutional Guarantees, the
Minister of Interior stated that the police had not intervened in the case
concerning Mr. Bolaños, and therefore could provide no information.
In support of this allegation petitioners quote but did not provide the
April 10, 1986 response of the Interior Ministry to the Court of Constitutional
Guarantees.
l. Petitioners
note the participation of Dr. Carlos Romero Herrera in various aspects of this
matter. He acted as judge in
initiating the criminal process opened following Mr. Bolaños' death.
In the order initiating the process, petitioners report that Dr. Romero
required that an autopsy be carried out. Notwithstanding
this order, petitioners allege that no autopsy was ever carried out, and that
Dr. Romero instead procured a false autopsy report.
The petitioners assert that, when the Court of Constitutional Guarantees
required information about this case in 1988, Dr. Romero appeared before it as
Defense Counsel for the General Command of the Navy.
m. The
petitioners also cite instances of conflicting information respecting the death
of Manuel Bolaños and the pursuant investigation.
Petitioners cite, but did not provide, the text of a letter from the
Minister of Defense, General Luis Piñeiros to the General Commander of the
Navy, Admiral Hugo Unda Aguirre, of February 7, 1986, requesting clarification
concerning contradictions between reports he had received from the Admiral and
from the Commander of the Third Naval Zone.
The Minister of Defense alludes to the former report as having recounted
that "as to the disappearance of said citizen [Mr. Bolaños] a criminal
process is being carried out to establish responsibility," and "to
know his whereabouts." The
Minister described the latter report as having detailed criminal matters
initiated in the naval zone, including reference to a cause "concerning the
death of" this citizen.
n. Mr. Bolaños'
mother went to the naval base on the afternoon of October 16, 1985, asking for
her son. She was told that they did
not know who she was asking about, and was requested to return the following day
with photographs. The petitioners
assert that this is recorded in Commander Villota's October 19, 1987
declaration, which reports that when the woman returned the next day, the
Commander deduced that she was looking for the detainee known as "Pedrito,"
that is, for Manuel Bolaños. The
family was led to believe that Mr. Bolaños just disappeared.
o. Petitioners
believe the matter to have been under the jurisdiction of the Military Criminal
Court of the Third Naval Zone. Although
years have passed since the date of Mr. Bolaños' death, they have been unable
to ascertain the status of the process. The
petitioners contend that while Article 63 of the Code of Military Procedure
provides that the preliminary stage of the criminal process should last 10 days,
proceedings had continued at least through the October 19, 1987 declaration of
Commander Villota taken more than two years after Mr. Bolaños' death.
p. The
petitioners further contend that the illegal detention, torture, and resulting
death that they allege occurred in the case of Manuel Bolaños are consistent
with other abuses committed by investigation authorities.
Petitioners note that in the proceedings of the Multiparty Commission of
the National Congress charged with investigating the disappearance of Consuelo
Benavides there is a reference to excesses committed by officials within the
investigation concerning the assassination of Arturo Sotomayor.
The pertinent parts of this information were transmitted
to the Government of Ecuador on November 28, 1990, with a request that it
provide all information relevant to the case within 30 days.
4. By means of a note of
December 4, 1990, the Government of Ecuador acknowledged receipt of the
Commission's July 13, 1990 transmission of the pertinent parts of the case. The Government informed the Commission that the judicial
process initiated to investigate the detention and later events relative to Mr.
Bolaños had been closed in 1989. The
Government also noted that the matter concerning Mr. Bolaños was currently
before the Human Rights Commission of the United Nations.
5. The pertinent portion
of the Government's response was communicated to the petitioners by the
Commission in a note dated January 15, 1991.
6. By a note of the same
date, the Commission acknowledged receipt of the Government's response, and
informed the Government that a pending examination of the matter by a human
rights body mandated to examine general situations concerning human rights would
not bar its consideration by the present body.
7. In response to the
January 15, 1991 request of the Commission for information, on January 29, 1991,
the Government of Ecuador remitted to the Commission a copy of the sentences
issued in the judicial process initiated in relation to Manuel Bolaños.
The military criminal process had been initiated at the order of the
Military Criminal Judge of the Third Naval Zone.
The first disposition transmitted was issued by the Law Court of the
Third Naval Zone on January 27, 1989. The
contents of the sentence may be summarized as follows:
a. Mr. Bolaños,
also known as "Pedrito," was captured on October 16, 1985 at 4:00 a.m.
He had been accused by Mr. Vélez Carriel of having participated in the
assassination of Arturo Sotomayor Bustamante.
Mr. Bolaños died of unknown causes while members of the Intelligence
Service were arranging to interrogate him.
b. The
summary stage of the process had been concluded, and the Public Prosecutor of
the Zone and the Military Attorney General had issued their respective opinions.
Both recommended that the cause be dismissed because there was no basis
for a charge or finding of personal responsibility in the matter.
c. The
testimony of ten persons is cited, in which it is consistently recorded that
pursuant to the Sotomayor homicide, an operation was mounted to capture those
responsible. Some persons were detained, but were freed once it had been
shown that they had not participated in the crime.
One of the detainees died at approximately 7:00 a.m. on October 16, 1985
of causes described in documents in the investigation file.
Principally, the autopsy protocol indicates that he died due to alcohol
intoxication. The investigation
file contains the out-of-court declarations given before the Naval Intelligence
Service by the citizens detained in that operation, from which it may be
ascertained that "none of them had been physically or psychologically
coerced so that they would voluntarily express the reason for their
detention."
d. For the
foregoing reasons, and in accordance with the opinions issued by the Public
Attorney and the Military Attorney General, it was ordered by the Court that the
process be dismissed.
8. The Government also
transmitted a copy of the May 10, 1989 order issued by the Court of Military
Justice in Quito confirming the dismissal of the cause by the Law Judge of the
Third Naval Zone. This disposition
reviews the points set forth as the basis for the opinion of the Law Judge
above, also notes that the body of Mr. Bolaños presented no signs that he had
been physically mistreated, and notes that the medical experts had concluded
that his death was due to alcohol intoxication.
In accordance with those points, the order of dismissal was confirmed.
9. The Commission
transmitted a copy of the sentence to the petitioners by a note of February 8,
1991, requesting that any observations thereon be filed within 30 days.
10. By means of a note of February
20, 1991, the petitioners informed the Commission that neither they nor the
family of Mr. Bolaños had yet received official notice of the death of Mr. Bolaños,
the circumstances thereof, or of the location of his remains.
They further noted that, despite numerous actions before competent
authorities, they had been unable to obtain a copy of the criminal process
initiated in the matter.
11. The petitioners filed their
observations with respect to the Government's January 29, 1991 transmission on
March 4, 1991. In response to the
official finding that Mr. Bolaños died as a result of alcohol intoxication,
they maintain that in fact he died as a consequence of the mistreatment he
received while in custody. The
petitioners again refer to the October 20, 1985 communication they refer to
above, in which Commander Villota states that when he arrived at the base in
Balao:
I was informed that the captured citizen (Manuel Bolaños) had died from
the effects of interrogation, and that the same agents who had participated in
the interrogation had proceeded to bury the body.... Given this very difficult and compromising situation, in a
meeting of officials, I decided to consult with Political Chief Ricardo Gutiérrez,
who counseled to disappear the body and maintain absolute silence on the
matter....
12. The petitioners again quote from
the October 19, 1987 declaration of Commander Villota in which he recounts that
once informed of the death, he asked about the body, and was told that it had
already been buried. Petitioners
reiterate their reference to a passage later in the same declaration in which
Commander Villota recalls the advice of Political Chief to leave the body where
it was, as to do otherwise would risk bringing the facts to light, and because
an autopsy would reveal the true cause of death.
13. With their response, the
petitioners submitted copies of several documents which they had cited
extensively in prior submissions: official communication ESTESM-GVM-001-S, the
October 20, 1985 report of Commander Villota to the Commander of the Third Naval
Zone; the February 7, 1986 letter of the Minister of Defense to the General
Commander of the Navy; the operative portion of an order by Military Criminal
Judge Romero which refers to some of the measures taken to investigate the
matter; and three pages of the October 19, 1987 statement of Commander Villota
before the Military Criminal Judge Barriga Chiriboga.
14. On March 21, 1991, the
Commission requested that the Government of Ecuador provide a copy of the file
compiled in relation to the investigation and criminal process carried out in
relation to the disappearance and death of Manuel Stalin Bolaños Quinoñez.
The Commission asked that all relevant information be submitted within 30
days.
15. By a note of July 4, 1991 the
petitioners requested a thirty day extension to submit their observations on
this case. The Commission
acknowledged receipt and granted this request with a note of July 17, 1991.
16. The Commission's above request
that the Government of Ecuador supply the information relevant to the case was
reiterated in a note dated January 7, 1992.
17. With a note of the same date the
Commission also reminded the petitioners that although they had requested and
been granted an extension to file their observations in the case, no response
had been received. They were
requested to provide any response or new information within thirty days.
18. On January 27, 1992 the
Government of Ecuador wrote to the Commission to acknowledge receipt of the
January 7 correspondence, to note that it had been received by the Minister of
Foreign Relations on January 23, 1992, and to indicate that the information
requested was being compiled.
19. The petitioners supplied brief
observations on the case in a note of February 27, 1992.
They contest absolutely the May 10, 1989 court finding that Manuel Bolaños
had died as a result of alcohol intoxication, and the court's conclusion that
there existed no basis for a finding of personal responsibility.
They maintain that the version of events set forth by the Government is
clearly contradicted by other available information, including the October 20,
1985 report of Commander Villota, in which he set forth that Manuel Bolaños
died from the effects of interrogation and was buried by his interrogators.
They again reiterate the information found later in that report
concerning the advice of Political Chief Ricardo Gutiérrez "to disappear
the body and maintain absolute silence on the matter."
20. The petitioners requested that
the Commission:
a. find the Government of
Ecuador responsible for the disappearance of Manuel Bolaños;
b. declare the Government in
violation of Articles 4, 5 and 8 of the American Convention on Human Rights;
c. require an independent
judicial investigation to determine the whereabouts of Manuel Bolaños, and to
identify and punish those responsible in the case;
d. and require the payment of
compensation to the family of Manuel Bolaños for the damage caused by the state
agents who ordered and carried out his disappearance.
21. The substantive portion of the
petitioners' observations on the case was transmitted to the Government by a
note of March 16, 1992.
22. A copy of the military criminal
process, designated number 004/85, undertaken to discover the authors of and
accomplices and abettors to the death of Manuel Bolaños, was submitted to the
Commission by the Government of Ecuador on August 18, 1992.
The file records that the process was initiated on October 29, 1985, and
terminated on May 31, 1989. The
file consists of eighty-three pages of documents relevant to the process, and
will be discussed in more detail below.
II.
ANALYSIS
ADMISSIBILITY
1. The complaint
fulfills the formal requirements of admissibility contained in the American
Convention on Human Rights and the Commission's Regulations.
In accordance with Article 47.b of the Convention, the Commission is
competent to examine this case as it alleges facts tending to establish a
violation of human rights as defined by the American Convention on Human Rights.
2. In accordance with
the requirements of Convention Articles 46.c and 47.d respectively, the subject
of the petition is not pending settlement in another international proceeding,
nor does it duplicate a petition previously examined by the Commission. The Government had indicated in its communication of December
4, 1990, that this matter had been placed before the United Nations Commission
on Human Rights for study. The
Inter-American Commission responded at that time that as the mandate of the
United Nations Commission concerned general situations of human rights, its
consideration did not inhibit the processing of the case in the instant forum.
3. The original petition
was filed on August 29, 1988. According
to documentation remitted by the Government, a military criminal process had
been initiated on October 29, 1985 to investigate the circumstances of the death
of Manuel Bolaños. The
investigation remained open at the time the petition was filed.
In accordance with the requirements of Convention Article 46.1.b, the
petition was timely filed.
4. In accordance with
Article 46 of the American Convention, remedies available to petitioners under
domestic law must have been pursued and exhausted.
The information before the Commission demonstrates that the petitioners
attempted to invoke domestic remedies, and to obtain the information necessary
to fully pursue and exhaust such remedies.
The petitioners filed petitions for habeas corpus with the
municipal authorities of Esmeraldas which were denied.
The information before the Commission indicates that such petitions were
filed after Manuel Bolaños died in custody, and while an investigation was
presumably being conducted into the circumstances of his death. Yet, the petitions were denied, and one such petition was
reportedly delayed for one year.
5. As to the denial of
the petitions, "the mere fact that a remedy does not produce a result
favorable to the petitioner does not in and of itself show the inexistence or
the exhaustion of all the effective domestic remedies." (Velásquez Rodríguez,
Judgment of July 29, 1988, para. 67). In
this case, according to the Government's own data, Manuel Bolaños had died on
October 16, 1985 while in the custody of state agents.
Documents included in the military criminal process case file indicate
that the Third Police Commissioner of Esmeraldas participated in the official
October 23, 1985 examination of the place of the death.
Moreover, on November 6, 1985, in view of the initiation of the military
criminal process, the Commissioner remitted to Military Criminal Judge Herrera
the original records of all measures taken under his authority in relation to
the death of Mr. Bolaños. The
foregoing suggests that the writ of habeas corpus, the remedy
normally most effective to ascertain the location and status of a person
presumably detained by the authorities, was functionally inoperative in this
case. As to the presumed delay of
approximately one year described by petitioners in the processing of one of
those writs, this further indicates that the appropriate domestic remedies in
this case were unresponsive and ineffective.
6. The requirement that
domestic remedies be exhausted allows the state concerned the opportunity to
resolve a situation before the complementary remedies of the inter-American
human rights system are brought to bear. The
remedies normally effective to discover the location or status of a detainee
were in this case ineffectual and subject to unwarranted delay.
The Commission therefore finds that domestic remedies have been
sufficiently invoked in this case, and that, pursuant to Article 46.2, the
requirement that domestic remedies be pursued and exhausted is inapplicable.
The Government has not contested the admissibility of this case on the
basis of non-exhaustion of domestic remedies.
7. In October of 1994,
the Commission placed itself at the disposal of the parties for the purpose of
facilitating a friendly settlement of this case, in accordance with Article 48.f
of the American Convention. The
Commission's October 12, 1994 letter to the Government specified a period of 30
days for this process. The
Commission's subsequent note of November 23, 1994, recalled that the Government
had indicated its favorable disposition toward a friendly settlement of this
case in discussions held during the Commission's on site visit to Ecuador.
The Commission noted, however, that written notification of specific
measures taken in this regard would be required forthwith--within ten days--in
order for the Commission to consider that the friendly settlement process
remained open. The Government
responded with a note of December 26, 1994, briefly stating that the Foreign
Ministry was seeking a rapid and definitive solution to the case, and had
communicated with police and judicial authorities for this purpose.
No further information has been received.
As the Government declined over a period of several months to suggest any
specific measures to amicably resolve this case, the Commission has no
alternative but to consider the friendly settlement process terminated due to
inaction.
MERITS
Article 7
8. Article
7 of the American Convention provides in pertinent part:
1. Every
person has the right to personal liberty and security.
2. No one shall be deprived of his
physical liberty except for the reasons and under the conditions established
beforehand by the constitution of the State Party concerned or by a law
established pursuant thereto.
3. No one shall be subject to
arbitrary arrest or imprisonment.
...
5. Any person detained shall be
brought promptly before a judge or other officer authorized by law to exercise
judicial power....
6. 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.... In this case it has been shown that members of the
Ecuadoran naval force entered the home of Mr. Bolaños' sister, placed him in
their custody, and transported him to the naval base at Balao where he was held
until he died. It would appear that
no search or arrest warrants were presented.
The petitioners submissions indicate rather, that at the time the men
were taken from the house, the stated purpose of the detention was to review
their identification documents.
9. Article
19(17)(g) of the Ecuadoran Constitution provides in pertinent part: No one shall be deprived of their liberty except by
virtue of a written order by a competent authority, in the cases, for the time
and with the formalities prescribed by law, excepting crime discovered in
flagrante.... Specific provisions concerning detention are set forth in
the Code of Criminal Procedure of Ecuador.
Of the pertinent articles, Article 172 provides for preventive detention
by judicial order. Article 174
authorizes apprehension in the case of a flagrant delict (defined in Article 175
as an offense committed in the presence of a person or persons, or discovered
immediately after its commission, if the author is apprehended with arms,
instruments or documents relative to the recently committed offense).
Article 176 provides that no one shall be apprehended except by agents
authorized by law. Apprehension by
other persons is authorized only: at the moment an offense is about to be
committed; in the case of a fugitive under sentence or subject to a detention
order; in the case of a person charged, processed or accused who has escaped. A
person so apprehended must be placed immediately under the authority of an agent
of the National Police, Judicial Police, or in the appropriate case, the
Political Deputy.
10. In this case, it seems clear
from both the petitioners' and the Government's submissions that no judicial
order for the arrest or detention of Manuel Bolaños had been issued.
The information contained in the case file submitted by the Government
consistently indicates that Mr. Bolaños was apprehended and detained in
connection with an investigation being carried out by naval authorities into the
October 12 murder of Officer Arturo Sotomayor.
Mr. Bolaños was detained several days subsequently, at the home of his
sister. The facts as set forth indicate that this was not a case in
which apprehension without prior judicial order was authorized by law.
Moreover, the agents who apprehended Mr. Bolaños were not authorized by
law to perform that function. The
Commission finds from the information before it that the apprehension and
detention of Manuel Bolaños were carried out in contravention to the
substantive and procedural requirements of the Ecuadoran Constitution, and the
law established pursuant thereto.
11. American
Convention Article 7.6 specifies 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...." Article 19(17)(i) of the Constitution of Ecuador sets forth
in pertinent part that: "Any person believed to be illegally deprived of
their liberty is able to resort to the [writ of] habeas corpus.
This right may be exercised by him or by his representative, without
necessity of written order, before the Mayor or Council President of the
jurisdiction in which he is found...." The Constitution requires that the municipal authority
immediately order the presentation of the detainee and the order authorizing the
deprivation of liberty. Further,
those in charge of detention facilities are constitutionally required to comply
without excuse.
12. The illegal arrest and detention
in this case, apparently carried out absent any judicial order by agents
unauthorized by law with the detainee held in an irregular location, presumably
rendered the detainee unable to access the legal means and remedies to assert
this right on his own behalf. The
right to petition for a determination of the legality of detention is the
fundamental guarantee of a detainee's constitutional and human rights in the
case of deprivation of liberty by the state.
It must be noted as well that, according to the petitioners' submissions,
there was a lengthy delay in the processing of a writ in this case. The Government has provided no information on the habeas
corpus petitions filed in this case.
The Commission observes that this presumed delay in processing a writ of habeas
corpus contravenes both domestic law and the requirements of Article 7 of
the American Convention.
Article 1
13. Article
1 of the American Convention sets forth the obligation of States Parties first,
to respect the rights and freedoms recognized, and second, to ensure the free
and full exercise of those rights to all persons subject to their jurisdiction. The latter obligation of Article 1 specifically
implies the duty of the State to organize the governmental apparatus and
... the structures through which public power is exercised, so that they are
capable of juridically ensuring the free and full enjoyment of human rights.
As a consequence of this obligation, the States must prevent, investigate
and punish any violation of the rights recognized by the Convention and,
moreover, if possible attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation of human
rights. (Velásquez Rodríguez, para. 166).
14. The case file remitted by the
Government contains 83 pages of documents related to the summary stage
investigation carried out by the Court of Indictment in military criminal
process 004/85, initiated October 29, 1985 and terminated May 31, 1989.
The order of Military Criminal Judge Romero initiating the summary
investigation sets forth that Mr. Bolaños died of unknown causes while members
of the intelligence service were arranging to interrogate him.
An investigation to identify the authors and accomplices was ordered, as
the facts related constituted a punishable offense under the Military Criminal
Code. (File, page 3.) By
a letter of October 18, 1985 Judge Romero had requested that the Third National
Commissioner of the Esmeraldas Police remit all the measures practiced by his
office in relation to this matter. (File,
page 6.) In a response dated
November 6, 1985, the original copies of the act identifying the place of the
death, the act recording the removal of the body, and the autopsy protocol were
remitted. (File, pages 7-11.)
15. By note of February 25, 1986
Judge Romero requested that the Director of Navy Intelligence name the personnel
who participated in the Sotomayor investigation under the command of Officer
Fausto Morales. (File, page 12)
The response, dated February 27, 1985 and stamped
"confidential," lists the following naval personnel as having
participated in the investigation:
Fausto Morales V.
Carlos Albuja O.
Agustín Novillo L.
Segundo Castillo Ch.
Raúl Coello R.
Marco Pacheco P.
Vicente Alvarado
Gracian Villota M.
Luis Chacon R. Jorge
Guerrero C.
Manuel Plua G.
and
Guillermo Reyes M. (File, page 13.) By
notes of March 6, 1986, April 21, 1986, and June 19, 1986, Judge Romero
requested that Naval Intelligence present seven of those named to provide
statements. (File, pages 15, 23,
and 25.) Twice the Director of
Naval Intelligence responded that the named personnel were on assignment, and
would be presented some days later. (File,
pages 21, 24.) In a communication
of April 22, 1986, the Director indicated that two of the agents would be
presented that day; however, as of July 4, 1986, the file records that none of
the seven had been presented. (File,
pages 24, 26.)
16. Declarations
were provided on July 8, 1986 by the following: Lieutenant Commanders Gracian
Villota M. and Luis Chacon Romero, Carlos Albuja O., Segundo Castillo Ch.,
Fausto Morales V., Vicente Alvarado, Marco Pacheco F. and Gustavo Proano
Garaicoa. The file also contains a
copy of a report dated October 29, 1985, authored by Officer Chacon Romero,
concerning the Sotomayor investigation. After
additional requests by the Judge, on July 14, 1986, Guillermo Reyes M. and
Baltar Enrique Prias provided their declarations.
17. Although
the Judge had explicitly requested that Agustín Novillo L. and Raúl Coello R.
be presented to give statements, there is nothing in the file to indicate that
they ever appeared. Nor, according
to the case file, did Jorge Guerrero C. or Manuel Plua G. ever provide
information as to their participation in the Sotomayor investigation.
18. On April 16, 1986 the Director
of Naval Intelligence remitted to the Military Criminal Judge the list of names
of those detained in the October 16, 1985 operation in Esmeraldas:
Fredy Rubing García Carreño
José Delgado Bone
Jimmy Moreno Nazareno Enrique Torres García
Agapito Granja Castillo
José Caicedo Medina
Miguel Gabriel Mosquera Betancourt
Víctor León Acosta Caicedo
Manuel Adolfo Loave Satizabal
Onesio Segundo Mera Salas
Juan Klever Mora Begne
Oscar Aníbal Becerra Rojas
Guber Mina Achillie In September, 1987 it was determined that the above persons should be located to provide statements. The Naval Intelligence Agency was requested to present them, although one of those named was not included in this request: Guber Mina Achillie.
19. Pursuant
to the request of the Military Criminal Judge, on October 28, 1987, Lieutenant
Albuja Obregón remitted copies of the declarations taken from those detained in
connection with the Sotomayor investigation.
Only eight declarations are included in the case file.
Of those persons named in the Naval Intelligence list, the case file
contains the statements of José Delgado Bone, Jimmy Moreno Nazareno, Enrique
Torres García, Agapito Granja Castillo and Juan Klever Mora Begne. The additional three declarations are those of detainees
Willyam Antonio España Ordonez, Nicasio Bonifacio Angulo Jama and Telmo
Fernando Montaño García. Only two
of the declarations indicate the date taken (October 16, 1985).
20. The case file records that, as
of December 10, 1987, none of the detainees had been presented to give
statements relative to the investigation into the death of Manuel Bolaños.
21. The State is obligated to
investigate every situation involving
22. The information submitted by the Government clearly shows that Manuel Bolaños was apprehended by state agents acting under the mantle of public authority. The apprehension of citizens is not a role within the authorized functions exercised by members of the Ecuadoran Marine Corp or Navy. It further appears that the apprehension was not authorized by judicial order, as required by the laws of Ecuador. These facts alone, as they were revealed by petitions filed before various authorities by family members and by the petitioners, should have been sufficient to instigate an investigation by the organs of the judicial branch.
23. The information before the Commission indicates that the organs of the Executive and Judicial branch failed to act in this case. Although family members and petitioners contacted numerous authorities in both branches, filed petitions of habeas corpus before local authorities, and before the Court of Constitutional Guarantees, it appears from the information before the Commission that none of these efforts produced any meaningful measures of investigation.
24. The fact that the family members, despite having been in contact with numerous state authorities and having made many pleas for information, have never been officially notified of the death of Manuel Bolaños demonstrates a severe deformity in the systems of Ecuador designed to guarantee respect for the rights of its inhabitants. To date the family is unable to provide a proper burial for the body of Manuel Bolaños because they have never been informed of the location of his remains. The Commission concludes that the appropriate organs of the Government of Ecuador failed to take effective action to guarantee respect for human rights in this case.
25. Even if the authorities of the Navy had been attributed with the authority to conduct the investigation into the death of Mr. Bolaños, the investigation they carried out was not designed to be effective. The process was fraught with delay which cannot be justified in an investigation of this nature. There are no contemporaneous first hand accounts of the circumstances of the death in the case file. The contemporaneous reports of those on the scene at the time of the death would serve as records critical to establishing the exact circumstances of death. Yet these critical accounts are not in the file. There is no first hand testimony from anyone who witnessed his death. There is no first hand testimony from anyone marking the precise time of death. In fact, there is no information in the case file of any kind indicating first hand knowledge of the circumstances of Mr. Bolanos' death. Each of the ten naval personnel who provided statements contained in the case file had been informed of the death by someone else. Only three of the declarant were asked any questions during their depositions.
26. There are also inconsistencies in even the most basic facts. For example, in his report of October 29, 1985, Lieutenant Luis Chacón refers to the capture as having taken place on October 17, 1985, although in his declaration he stated that it occurred on October 16. (File pages 28, 30.) Agent Reyes Mendoza also described the operation as having occurred on October 17. (File page 44.) In another instance, agents Pacheco and Proaño attested that they were notified by others of the death of one of the detainees at around 7:00 a.m. Both apparently observed the body very soon thereafter. Both noted in their statements that Officer Morales was then on the scene. In Officer Morales' statement, however, he says he was informed of the death by someone else at around 7:00 a.m., when he was in another sector of the Base, "distant" from where the detainees were held. In another instance, Naval Intelligence supplied a list of names of those detained in the operation. Although it is clearly indicated in other records that Manuel Bolaños was detained at that time, his name is not on the list. Lieutenant Chacón was requested to remit the declarations taken from those detained in the operation. Of the eight declarations remitted, only five of the declarant were named on the Naval Intelligence list, although the other three had been detained in the same operation. The Commission observes that the measures taken by the State to investigate the death of Manuel Bolaños, as reflected in the information submitted were not designed or undertaken in such a way as to produce effective results.
Article 4
27. The Commission observes that, in
the same way the burden of proof is on the state to produce the detainee and the
order justifying the detention in a habeas corpus case, when the
agents of a state have engaged in an illegal detention in which the death of the
detainee ensues, the burden is on the State to demonstrate the precise
circumstances of the death. The
burden is on the Government, very obviously, because the Government is in
possession of the body and the relevant information.
28. In the Gangaram Panday Case, the
Inter-American Court of Human Rights examined the relationship of illegal
detention to an alleged violation of the right to life.
The Court affirmed that the test for state responsibility under the
Convention must focus on whether the violation in question "is the result
of a State's failure to fulfill its duty to respect and guarantee those rights,
as required by Article 1(1) of the Convention.
(Gangaram Panday
Case, supra, para. 62, citing
Velásquez Rodríguez Case, para. 173; Godínez Cruz Case, para. 183.)
In the Panday case the Court determined that the circumstances made it
"impossible to establish the responsibility of the State in the terms
described above because, among other things, the Court is fixing responsibility
for illegal detention by inference but not because it has been proved that the
detention was indeed illegal or arbitrary...." (Gangaram Panday Case, supra, para. 62).
29. In the instant case the
Commission has determined that the detention of Manuel Bolaños was clearly
illegal. The acts of the state
agents were substantively and procedurally inconsistent with Ecuadoran law, and
with the requirements of the American Convention.
The guarantee of habeas corpus, normally most effective to
ascertain the legality of detention, as well as to ascertain the location and
status of the detainee was functionally inoperative. While the Court found in the Gangaram Panday Case that it
could not determine responsibility by drawing an inference from an inference,
here the base presumption has been proven.
In fact, the submissions of the Government indicate incontrovertibly that
the apprehension and detention of Manuel Bolaños was illegal.
The right to life and the guarantee and respect thereof by States cannot
be conceived in a restrictive manner. That
right does not merely imply that no person shall be deprived of his or her
life.... It also demands of the
States that they take all appropriate measures to protect and preserve it....
The international protection of human rights, as it relates to Article
4(1) of the American Convention on Human Rights, has a preventive dimension, in
which the obligation to act with due diligence assumes graver implications when
dealing with illegal detentions. (Gangaram Panday Case, Judgment of January 21, 1994,
dissenting opinion of Judges Picado-Sotela, Aguiar-Aranguren and Cançado
Trindade, at paras. 3, 4.)
30. In the instant case, Manuel Bolaños
was, by the Government's own submission, in the custody of state agents at the
time of his death. As to the cause
of death, the case file supplied by the Government supplies three indicia, the
first of which is the autopsy protocol dated October 16, 1985 which states the
finding that the death was due to alcohol intoxication.
(File, page 10.) The second
indicia is found in the report which records the identification of the place of
the death. In this report, dated
October 23, 1985, it is affirmed by persons present that the place identified is
in fact the place where Manuel Bolaños died, "at the moment that he
suffered a heart attack." (File,
page 8.) The third indicia is found
in the July 8, 1986 statement of Commander Villota, in which he recounts that he
was informed of the death by telephone, and when he asked the cause was told
that agents went to bring Mr. Bolaños to the interrogation room and found him
laying on the floor, "they noticed that he had symptoms of having ingested
alcohol and he wasn't moving." They
subsequently realized he was dead. (File,
page 32.)
31. Looking
first to the autopsy protocol, the Commission observes that the finding as to
the cause of death is not supported by the evidence set forth therein.
The sole notation on the protocol which is probative with respect to the
finding is that an odor of alcohol was detectable in the gastric contents.
The existence of an odor of alcohol indicates only that a person ingested
alcohol shortly prior to death, it does not indicate the quantity of alcohol
ingested. (August 13, 1994 report
to the Commission from expert forensic pathologist Robert H. Kirschner, M.D.)
Neither the protocol nor the case file contain any record of a
toxicologic analysis of the victim's blood.
A diagnosis of death due to alcohol intoxication can only be made
pursuant to toxicologic analysis of the blood.
The minimum lethal blood alcohol concentration is approximately 350-400
mg/dl (0.35-0.40%), or 18-20 drink equivalents. Moreover, the diagnosis of fatal alcohol intoxication can be
made only in the context of an otherwise negative autopsy and toxicologic
examination. (Id.)
32. The Inter-American Commission
and Court have set forth repeatedly that the Article 1 obligations of a state
party to the American Convention include the duty to investigate alleged human
rights violations. When an
individual dies of unexplained causes while in the custody of the state, the
required investigation must be undertaken promptly, thoroughly and impartially.
The Commission notes that the United Nations has set forth detailed
illustrative criteria for investigations of unexplained deaths in custody in its
annex to Economic and Social Council resolution 1989/65, "Principles of the
Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions." For example, all surfaces of the decedent's corpse should be
photographed. In this case, there
is no indication that photographs were taken, either of the body or of the place
where it was found. In Ecuador,
moreover, it is legally stipulated that in the investigation of a death
implicating possible criminal responsibility, photographs shall be taken of the
place where the body is found. (Ecuadoran
Code of Penal Procedure, Article 83(4).)
33. Further,
an autopsy protocol in such a case should describe all body marks, scars or
injuries of any kind. The entry on
the instant protocol to record body marks was left blank, although it is noted
elsewhere in the case file that the victim bore at least one scar on his left
leg (file, page 9). While
subcutaneous incisions and dissections to probe for injuries not visible on the
body surface are essential in such an investigation, the protocol makes no
reference to these. Nor, it
appears, were radiologic, microscopic or toxicologic studies performed.
34. The procedures which should be
employed in the case of an unexplained death in custody exist to provide
assurance that it does not remain unexplained.
In this case, the autopsy protocol fails to meet the fundamental
requisites of a viable investigation, and is inadequate as basis to make a
finding as to the cause of death of Manuel Bolaños.
35. The second indicia in the case
file is the notation in the October 23, 1985 report confirming the place of the
death that persons on the scene said that Manuel Bolaños died as a consequence
of suffering a heart attack. The
persons who provided this information are not identified. This notation concerning the cause of death is uncorroborated
by other evidence, but stands in marked contradiction to the finding of the
autopsy protocol. There is no
indication in the case file that this contradiction was ever investigated.
36. The third notation in the case
file which could be relevant to the cause of death in this case is the notation
in a report that Commander Villota was told that agents went to summon Mr. Bolaños
for interrogation and "noticed that he had symptoms of having ingested
alcohol and he wasn't moving," and then realized he was dead.
Neither the person who reported this to the Commander, nor the agents who
saw Mr. Bolaños are identified. Nor
is there any clarification of what symptoms were detected.
According to the report, the victim was lying motionless on the floor at
the time, and was in fact dead.
37. In the view of the Commission,
the death of Manuel Bolaños while in the custody of agents of the Government of
Ecuador remains unexplained. The
illegal apprehension and detention of Manuel Bolaños, his unexplained death in
custody, and the failure of the Government to undertake adequate measures to
address the grave allegations raised in relation to his death, lead the
Commission to conclude that the right to life of Manuel Bolaños was violated as
a result of the failure of the Government to fulfill its duty to respect and
guarantee the right to life of Manuel Bolaños recognized in Article 4 of the
American Convention.
Article 5
38. The petitioners argue that the
information available forms the foundation from which it must be concluded that
Mr. Bolaños was tortured by the authorities while held in custody at the base
in Balao. In their submissions, the
petitioners extensively cited from what they described as statements made by
Commander Villota, in which he reported that he was informed that Mr. Bolaños
died from the effects of the interrogation, and was counseled by Political Chief
Gutiérrez to hide the body because an autopsy would reveal the real cause of
death. This information, the
petitioners maintain, is evidence of torture.
39. These statements relied on by
the petitioners are not contained in the case file, nor has the Government
directly responded to or challenged the excerpts from this purported statement
as cited and extensively quoted by petitioners.
Rather, the case file contains a statement of Commander Villota, dated
July 8, 1986, which indicates that he was informed that agents had gone to take
Mr. Bolaños to the interrogation room, at which time they discovered that he
was dead. The Commander notes that,
pursuant to his inquiries, the personnel involved in the investigation told him
that neither the dead detainee nor the others interrogated had been physically
mistreated. The personnel who
provided this information are not identified.
Review of the statements of the ten naval personnel included in the case
file reveals that none of these declarants referred to the physical treatment or
physical integrity of any of the detainees.
40. The claims raised by the
petitioners, and communicated to the Government at various junctures in the
process, raise very serious allegations. The
Government has provided information to the Commission which, while it does not
directly rebut or respond to the allegations, in effect contradicts them.
The Commission further observes that the military investigation failed to
take adequate measures to determine the physical treatment and condition of the
decedent. The case file indicates that ten declarations were taken
during the military investigation. The
declarants are described as military personnel who were involved in the
apprehension of Mr. Bolaños. Yet,
only one declarant, Commander Villota, makes any assertion about the victim's
physical wellbeing. The assertion
he makes is not based on his own knowledge, but on information allegedly
received from sources not identified. The
other nine declarants appear to have had no personal knowledge of the physical
treatment or condition of the victim.
41. The information in the case file
on this point is insufficient as a basis for the Commission to assess the
treatment accorded to Mr. Bolaños. Nor
can the Commission make a finding based on the allegations raised by the
petitioners. It must be noted,
however, that the fact that the information is insufficient further implicates
the failure of the Government in this case to appropriately investigate the
human rights violations alleged.
Article 8
42. The American Convention provides
in Article 8.1 that all persons have "the right to a hearing, with due
guarantees and within a reasonable time, by a competent, independent, and
impartial tribunal, previously established by law ... for the determination of
his rights and obligations of a civil, labor, fiscal, or other nature.
"The right to an independent and impartial judicial process implies
not just the right to have certain guarantees observed in a proceeding already
instituted; it also includes the right to have access to the courts, which may
be decisive in determining an individual's rights, or in the case of a criminal
proceeding in which the injured party is denied the opportunity to accuse. The right of an aggrieved party to make a charge in a
criminal proceeding is recognized in the legal system of Ecuador.
Chapter V of the Code of Criminal Procedure of Ecuador sets forth the
conditions in which victims, their legal representatives, or immediate relatives
may bring a criminal accusation. The
victim's family was effectively prevented from exercising their right to
participate in criminal proceedings against those responsible for the illegal
apprehension, the illegal detention, and the death of Manuel Bolaños in that
all the information pertinent to such a charge was withheld from them.
Numerous inquires, both informal and formal failed to produce any
information on the whereabouts of Manuel Bolaños.
When the family learned, through unofficial channels (see para. 3.a
above) of the death of Mr. Bolaños, the matter was subject to a military
criminal investigation. Although
petitioners petitioned for review of the file or decisions in the matter, they
were unable to ascertain the status of the investigation.
43. Article
17 of the Code of Criminal Procedure of Ecuador provides that "[s]entences
executed in the criminal processes produce the effect of res judicata in a case
concerning the exercise of a civil action, only when they declare that there
exists no infraction; or, when existing, they declare the defendant is not
culpable for the same. Therefore,
one is not able to demand a civil indemnity while there does not exist a
criminal sentence of condemnation that declares a person criminally responsible
for the infraction." Thus, as
the possibility of a judicial finding of criminal responsibility was foreclosed
by the failure of the appropriate judicial organs to investigate the case of
Manuel Bolaños, and by the withholding of all pertinent information from the
family, so too was the option of indemnization by means of a civil suit.
44. Moreover,
the Commission notes that Article 8 provides that one wishing to exercise his
right to be heard by a competent tribunal must be able to do so within a
reasonable time. The investigation
carried out by the military penal court was initiated October 29, 1985 and
terminated on May 31, 1989. In
light of the facts of this case and the insufficient measures that were actually
carried out during the investigation, this delay in the legal process of almost
four years was clearly not reasonable.
Article 25
45. The Government of Ecuador failed
to honor its obligation to provide simple, swift and effective legal recourse to
the victim's family, so that their rights might be determined.
The family of Manuel Bolaños has the right to know the truth about what
happened to him, the circumstances of his detention and death, and to know the
location of his remains. This flows from the obligation of the state to "use all
the means at its disposal to carry out a serious investigation of violations
committed within its jurisdiction [in order] to identify those
responsible." (Velásquez Rodríguez
Case, Judgment of July 29, 1988, para. 166.)
The Commission has established that victims and their relatives have a
right to a judicial investigation by a criminal court designed to establish and
sanction responsibility for human rights violations. (See generally,
Report Numbers 28/92 (Argentina), and 29/92 (Uruguay), Annual Report 1992-93.)
46. The judicial bodies competent to
investigate facts such as those set forth in the present case apparently failed
to undertake any investigation into the apprehension of Mr. Bolaños by agents
of the state, and his detention and death in custody. The investigation carried out by naval authorities lasted for
approximately three years and seven months, but nonetheless failed to exhaust
all available measures to know the truth. Notwithstanding
that the Government was in possession of information the family had a right to
know, including where Mr. Bolaños had been held, the fact of his death, and the
location of his remains, the family and petitioners were never informed of any
of this. The lack of an
investigation by impartial competent authorities, and the delay and
insufficiency of the investigation which was carried out, and the failure of the
State to provide information, constitute a serious violation of the family's
right to prompt and effective judicial recourse. The delay in and insufficiency of any efforts of the State to
investigate the grave allegations raised by family members in domestic channels
has effectively prevented them from realizing their right to justice, and their
right to know the truth about what happened to Manuel Bolaños.
47. The rights under Convention
Articles 8, to a fair trial, and 25, to recourse to judicial remedies, as well
as the Article 1 obligation of the Government to investigate, all require that
the authorities responsible for legal action be competent, independent and
impartial.
48. It is the obligation of the
Government to carry out a full, independent and impartial investigation into an
alleged violation of the right to life. This
obligation is incident to the Government's duty to protect and ensure the human
rights recognized in the American Convention.
Where the state allows investigations to be conducted by the organs
potentially implicated, independence and impartiality are clearly compromised.
Legal procedures compromised in this way are incapable of affording the
investigation, information and remedy purportedly available.
In this case, military authorities conducted an investigation into facts
implicating responsibility on the part of members of the organization and the
organization itself. Military
authorities were not attributed with the legal authority to perform such
functions in this case, nor could they possibly act with the requisite
independence and impartiality. It
is instructive to note in this regard that all the witnesses summoned to provide
testimony in the military penal process carried out in the case were members of
the military. The consequence of
such compromise is insulation of those presumably responsible from the normal
operation of the legal system. This
type of de facto impunity is corrosive of the rule of law and violative of the
principles of the American Convention.
III.
CONCLUSIONS
1. Report
6/95 was approved by the Commission on February 17, 1995, during its 88th period
of sessions, and was transmitted to the Government on March 9, 1995.
The Commission requested that the Government inform it of the measures
taken to comply with the recommendations set forth therein within a period of 60
days. The response received was
dated August 21, 1995, and indicated that the measures recommended had not been
taken. The Government asserted
that, even assuming that Manuel Bolaños had been killed as a result of torture,
responsibility would fall on the individuals responsible, and not on the state.
The Commission therefore finds it advisable to reiterate to the
Government of Ecuador the following essential principle:
State responsibility is engaged under the American Convention when a
violation of a protected right is carried out by an act of public authority or
by persons acting under the color of such authority; when a violation occurs
with the acquiescence or support of a government; when a government fails to
bring the appropriate legal mechanisms to bear when a violation occurs; or when
a government fails to take required measures to prevent such a violation.
Consequently, in the instant case the Commission has determined that the
State of Ecuador is responsible for the deprivation of liberty and murder of
Manuel Bolaños, as well as for having failed to respond to these violations as
required by law, thereby having denied his family justice.
2. Victim Manuel Bolaños
died while in the custody of the state. The
Government has, however, failed to produce his body, or to explain why it has
not been produced. This failure to
act perpetuates the violation of the family's right to know the truth about the
fate of Manuel Bolaños. The
provision by a family of a proper burial upon the death of one of its members is
an act of inestimable importance within family life.
This most profound and intimate right has been and continues to be denied
to the Bolaños family. The
Commission will continue to request information on this point until it is
satisfied that the remains of Manuel Bolaños have been located and produced.
3. Finally,
it must be noted that the Government's August 21, 1995 submission offered that
the Procurator's Office would undertake the measures to ascertain through the
Prosecutor General of Esmeraldas whether the files of the Court of the Third
Naval Zone contained further information relative to the location of the remains
of Manuel Bolaños. Report 6/95
required such information to have been furnished to the family immediately. The
fact that relevant information may be in the possession of the Government and
has yet to be communicated to the family is inexcusable and must be corrected
forthwith.
4. Based on the
information and observations stated above, the Inter-American Commission on
Human Rights finds that the State of Ecuador has violated Articles 4, 7, 8 and
25 of the American Convention, and has failed to uphold its obligation
established in Article 1.
5. The Commission
recommends to the Government of Ecuador that it:
a. Undertake
a prompt, impartial and effective investigation of the facts denounced so that
the circumstances under which they occurred may be fully brought to light, and
those responsible identified and brought to trial.
b. Immediately
inform the family of Manuel Bolaños of the location of his remains, and
facilitate the wishes they have as to the appropriate final resting place of his
body.
c. Redress
the consequences of the violation of the rights enunciated, including the
payment of fair compensation to those injured as a result of the foregoing
violations.
6. The Commission
resolves to transmit this report to the Government of Ecuador and the
petitioners, and to request that the Government inform it, within a period of 15
days, with respect to the measures that it has taken in the present case in
accordance with the recommendations formulated in paragraph 5 above. In the event that timely compliance is not forthcoming, the
Commission will order the publication of this report in its Annual Report,
pursuant to Article 51 of the American Convention and Article 48 of its
Regulations, because the Government of Ecuador did not adopt the measures
stipulated to correct the violations set forth within the time period provided.
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