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REPORT Nº 13/97
On Admissibility
CASE 11.515
ECUADOR March 12, 1997
I.
SUMMARY
1. On
November 8, 1994, a complaint was submitted to the Inter-American
Commission on Human Rights alleging that Mr. Bolívar Franco Camacho
Arboleda had been arrested on 7 October, 1989, and that, five years
later, his legal situation remained unresolved. Five years and three
months after his arrest, the charges against him were dismissed. Mr.
Camacho Arboleda was released in February, 1995, and is seeking damages
for having been arbitrarily deprived of his liberty for a period of 63
months. The petitioners maintain that there is no law or procedure in
Ecuador to allow the recovery of such damages in this case.
II. FACTS
2. Mr.
Camacho Arboleda, 25 years of age and a citizen of Ecuador, was arrested
on 7 October, 1989, at about 4:00 p.m., by officers of Interpol for
Santo Domingo de los Colorados. Mr. Camacho Arboleda was charged with
the illegal possession of cocaine (amounting to 6 grams), and was
brought before the Sixth Criminal Court of Pichincha, in Santo Domingo
de los Colorados.
3. The
Sixth Court formally requested the Second Criminal Court of Quito to
have the seized drugs destroyed and to investigate the situation of the
accused, but this request was not acted upon.[1]
4. After
almost five years had elapsed, the judge issued a stay of proceedings,
and the case was sent, under mandatory consultation, to the Second
Division of the Superior Court of Quito, where 180 days passed without
the issuing of any decision.
5. The
petitioners point out that, despite their request for information from
the competent authorities about the legal situation of Mr. Camacho
Arboleda, the authorities failed to respond, nor did they expedite the
process in any way.
6. On
24 January, 1995, the Superior Court of Quito dismissed the charges
against Mr. Camacho Arboleda, and he was released in February of that
year.
7. Mr.
Camacho Arboleda is demanding damages for having been arbitrarily
deprived of his liberty for more than five years (63 months). At the
same time, he states that Ecuador has no law that would allow him to
make effective his claim for compensation.
Documentary evidence:
8. In
the record submitted to the Commission are copies of the following
documents: the initial indictment, the provisional stay of proceedings,
the application for revocation of the provisional stay of proceedings,
and the confirmation of the judgment of dismissal. The pertinent
portions of these documents are discussed below:
A.
Investigative Report[2]
9. On
11 October, 1989, the Deputy Head of Narcotics and Interpol for the city
of Pichincha, in Santo Domingo de los Colorados, submitted before the
Eleventh Criminal Judge of that city the Investigative Report NO.
012-SJI-SCD-89, in which the following facts are recorded:
Acting upon a confidential report that there were persons engaged
in the illegal trafficking of cocaine base within the Santo Domingo
Housing Cooperative, Interpol officers from that city went to these
premises, where they observed an individual wandering about
suspiciously. They followed that person and accosted him. They searched
him, and found upon his person a portion of cocaine base in a small
plastic pouch. The individual stated, under interrogation, that his name
was Bolívar Franco Camacho Arboleda; he said that the drug was intended
for delivery to a person on the same premises, but that that person had
fled when he became aware of the presence of the police officers.
According to the investigative Report, when he made his statement
at the Interpol office, Bolívar Camacho said that on a previous
occasion he had bought two envelopes of cocaine base from a citizen by
the name of José Sarmiento Jaramillo, and that subsequently, on two
further occasions, he had bought drugs from Héctor N., alias “el
Tito”. The second of those occasions was on Saturday, 7 October 1989
at about 3:00 p.m. It was on this date, at about 4:00 p.m., that Mr.
Camacho was arrested by Interpol officers, as he was going to deliver
the drug to an unknown citizen, who had fled the scene.
B.
Initial Indictment
10. On 13
October, 1989, on the grounds that the facts recorded in the
Investigative Report Nº 012-SJI-SDC-89 constituted a investigable
criminal offense, the Eleventh Criminal Judge of Pichincha issued an
indictment and ordered that proceedings begin to determine the
respective legal responsibilities. He cited the Public Attorney of the
Eleventh Criminal District of Pichincha, Mr Germán Moya Mondragón, and
Mr. Gregorio López Granizo, who was appointed to defend the person or
persons who had committed the deeds under investigation, and Camacho
Arboleda, José Sarmiento and Héctor N., alias “el Tito”, who stood
accused in this affair, and ordered that these persons be held in
preventive custody.
11. A
Constitutional Order of Imprisonment was issued against Camacho Arboleda,
who had been arrested, and the authorities were instructed to remove him
to the State Prison for Men in the city of Quito. The indictment also
provided that the following steps be taken:
i) To
obtain investigative testimony from the accused, and from all persons
having knowledge of the facts.
ii) To
inform the accused persons of the indictment and all proceedings to
date.
iii) To
conduct a psychosomatic examination of the arrested person, Bolívar
Franco Camacho Arboleda, with the assistance of medical experts of the
Office of the Attorney General. It also ordered that an examination be
conducted on the substance, said to be cocaine base, that was seized
from the accused, and which was sent to the Health Department of
Pichincha by order Nº 126-SJI-SDC-89. The Second Criminal Judge of
Pichincha was asked[3]
to see to these steps, and the corresponding instruction was sent to
him, giving him a period of 10 days in light of the distance.
iv) To ask
the Head of the SIC to proceed with the arrest of the accused José
Sarmiento and Héctor N., alias “el Tito”, and to bring them before
the authorities.
v) To
inspect the site of the deeds, on Thursday 19 October, 1989 at 11:00
a.m., with the assistance of experts who were to be appointed and
briefed shortly before the search.
vi) To
take all steps necessary to clarify the facts and complete the basis for
the summary proceedings.
C.
The Provisional stay of proceedings
12. On 28 June,
1994, the Eleventh Criminal Judge of Pichincha issued a provisional stay
of proceedings, stating that during the summary proceedings he had
received a petition sent to the Second Criminal Judge of Pichincha in
which Camacho Arboleda gave testimony, maintaining that: “with respect
to the indictment, I must clarify that the person who was said to have
fled never did so; the person named José Sarmiento traffics in drugs in
Santo Domingo, and gives money to Interpol. The information as to where
the arrest took place is untrue: I was arrested in Santa Martha Street,
while I was waiting for a bus. I was never found in possession of any
drugs that was José Sarmiento. I was arrested with a young woman, whose
name I never learned. When I was told what was happening, the Public
Attorney was not present. It is true that I take drugs, but they never
found a single gram on me...”.
13. A
psychosomatic examination of Camacho Arboleda was performed, and
confirmed that when he was arrested he did not have any drugs with him,
since, as he stated, he had for some time been trying to give up taking
drugs, although he had unfortunately fallen back into the habit from
time to time. He also maintained that the drug noted in the report
belonged to José Sarmiento, and that that person had apparently made
arrangements with the police and they, in order to exonerate him, put
the blame on Camacho Arboleda instead.
14. The report
adds that the person examined had been a moderate and infrequent
consumer of cocaine base, but that he appeared currently to have given
up the habit, and that, while he insisted that the drug did not belong
to him, the gross weight of cocaine base was six grams, which would not
be considered an excessive amount for the use of a person such as he, at
a time when he was taking drugs.
15. A chemical
analysis and identification was performed by experts on the seized drug,
and their expert report is part of the court record. They found the
substance to be cocaine paste, and the substance was subsequently
destroyed.
16. At the end
of the summary hearing, the Public Attorney for the Eleventh Criminal
District of Pichincha issued a statement in which he declined to bring
accusations against the three suspects. In light of these aspects and
the status of the proceedings, the Judge issued a Provisional Stay of
Proceedings, on the grounds that:
FIRST: No substantiated cause has been produced to impugn the
proceedings, and they are thus declared valid;
SECOND: The Police Report submitted by the Deputy Chief of
Interpol provides the material evidence for the violation: the chemical
analysis and identification of the seized substance, the report on the
destruction of narcotics, and the psychosomatic examination performed on
the person of Bolívar Franco Camacho Arboleda;
THIRD: With respect to the responsibility of the suspects José
Sarmiento and Héctor N., alias “el Tito”, whom the police have not
been able to arrest, despite the orders of the Court, no responsibility
can be imputed to them, since the mere reference to them by the other
suspect does not constitute sufficient proof. With respect to the
suspect Bolívar Franco Camacho Arboleda, it is true that, as pointed
out by the Public Attorney in his statement, the former Act to Control
Trafficking in Narcotics and Mind-altering Drugs did not criminalize the
consumption of drugs; yet there is doubt as to whether the drug was
actually seized from this suspect, or from José Sarmiento Jaramillo,
who appears to be working with the police.
17. On these
grounds, on the basis of Article 242 of the Criminal Procedures Code, a
Provisional Stay order was issued, suspending proceedings against the
three suspects Camacho Arboleda, José Sarmiento Jaramillo and Héctor
N., alias “el Tito”. The Judge ordered this ruling to be submitted
for consultation, and ordered that, since the only suspect being held
was Camacho Arboleda, he should be set free as soon as the consultation
was completed.
D.
Application for revocation of the stay of proceedings
18. On 15 July,
1994, the Public Attorney of Pichincha, Dr. José García Falconi,
requested the Second Division of the Superior Court of Justice of Quito
to revoke the stay of proceedings issued by the Judge, and to issue an
order to initiate plenary proceedings against the suspect. In his
conclusions, the Attorney stated that there were solid legal grounds for
investigating the violation, as follows:
i) The
physical evidence cited in the police report, which stated that there
were 6 grams of cocaine being held in the Police warehouse;
ii) The
chemical analysis of the seized substance tested positively for cocaine,
and
iii) The
certificate of destruction of the drug referred to.
19. The Public
Attorney also noted that the decree refers only to the conclusions
reached in the Police report, and the pre-trial statement given by the
suspect, in which he accepts the circumstances of having acquired 6
grams of cocaine for his personal consumption, a drug that was sold to
him on one occasion by José Sarmiento and on another by Héctor N.,
alias “el Tito”. In the investigatory testimony given by Camacho
Arboleda, it is stated that he is a drug user, and that the person who
supplies drugs in Santo Domingo de los Colorados is José Sarmiento.
20. Subsequently,
the Public Attorney’s Office makes the following points of law:
i) Art.
16 of the Code to the Drug Trafficking Control Act states that: no
person may have in his possession, whether in his clothing or his
effects, including in his home, office or place of work, or any other
place under his responsibility, without legal authorization or prior
medical prescription, any quantity of the narcotics and mind-altering
drugs mentioned in List I part II of the Annex to this Act. The drugs
mentioned in that Code (which was valid at the time of the events under
investigation) included marijuana and cocaine;
ii) Art.
27 of that code states: “By improper use of narcotic or mind-altering
drugs is meant here their non-therapeutic use”. Art. 33 (c) states:
“By illegal trafficking is meant any business transaction, possession
or delivery of any kind of medications, narcotics and drugs undertaken
contrary to the provisions of this Act.”
iii) From
the foregoing, we conclude that the law deems legal the possession of a
personal dose, but only with respect to those persons who are under
treatment with a drug, provided that the amount involved corresponds to
a therapeutic dose, which is recorded in the respective medical
prescription, signed by a doctor who is legally qualified to issue it.
21. The
Prosecutor states that since there is proof of a crime being
investigated and there are serious presumptions of responsibility
against the suspects Camacho Arboleda, José Sarmiento Jaramillo and Héctor
N., alias “el Tito”, to the effect that they are the authors of a
crime of the kind cited in Art. 33 (c) of the Code to the Act to Control
Trafficking in Drugs and Mind-Altering Substances, he has decided to
charge them and asks that the stay of proceedings issued by the Judge be
revoked, and instead that an order be given to launch a plenary hearing
into the crime.
E.
Revocation of the stay of proceedings
22. The
provisional stay of proceedings issued in this case by the Judge of the
Eleventh Criminal Court of Pichincha was revoked by the Division of the
Superior Court, and plenary proceedings were initiated against the
suspects; these proceedings were to be pursued to judgment with respect
to Camacho Arboleda, while prosecution was suspended against the others,
as fugitives.
F.
Dismissal of charges
23. The Fifth
Criminal Tribunal of Pichincha subsequently dismissed the charges
against Camacho Arboleda, and ordered the respective consultation, for
which reason the case came to the Second Division of the Superior Court
of Quito, which in turn decided to confirm the ruling consulted on 24
January, 1995. The Second Division ruled that with respect to the
responsibility of Camacho Arboleda, there was no solid proof that he had
drugs, since in his investigatory testimony he denies that any such
substance was found in his possession, and the police investigation
report only constitutes a presumption that is not sufficient to find the
suspect guilty, particularly in light of the fact that the pre-summary
statement was not given before a representative of the Public
Attorney’s Office and was not corroborated with other evidence during
the plenary proceedings.
III. ALLEGED
VIOLATIONS
24. The
complaint alleges the violation of the right to personal liberty
(Article 7) the right to a fair trial (Article 8), and the right to
judicial protection (Article 25) as guaranteed in the American
Convention on Human Rights.
IV. PROCEEDINGS
BEFORE THE COMMISSION
25. The
complaint was submitted on 8 November, 1994, and states the facts that
Mr. Camacho Arboleda arrested in October 1989, accused of the illegal
possession of cocaine, and that the proceedings had lasted more than 5
years, without any court decision as to his legal situation.
26. On 19 July,
1995, the Commission sent the pertinent portions of the complaint to the
State of Ecuador, giving it a period of 90 days to submit its response,
pursuant to Article 34 of the Commission Regulations. In that letter,
the Commission asked the state that, together with information
pertaining to the facts, it should supply any element of judgment that
would help the Commission to appreciate whether in the present case all
remedies under domestic law had been exhausted.
27. On 10
October, 1995, the State of Ecuador sent its response, stating that the
Second Division of the Superior Court of Quito had issued a ruling on 24
January, 1995, confirming the dismissal issued in favor of Camacho
Arboleda, and that “... under the meaning of Art 401 of the Code of
Criminal Procedures, the ruling has been carried out; and that pursuant
to Art. 385 ff of that legislation, only the accused or the Tribunal
itself may appeal to or order, respectively, the recourse of
Revision.”
28. With the
same statement, the State submitted copies of the legal decisions that
show the following procedural stages:
i) The
provisional stay of proceedings ordered by the Judge of the Eleventh
Criminal Court of Pichincha was revoked by the Division of the Superior
Court, which declared the plenary proceedings open.
ii) The
Fifth Criminal Tribunal of Pichincha later issued a dismissal in favor
of Bolívar Franco Camacho Arboleda, ordering the respective
consultation, for which reason the case came before the Second Division
of the Superior Court of Quito, which in turn confirmed the ruling
consulted on 24 January, 1995.
iii) The
Division confirmed the consulted ruling and decided that the reason for
the delay in the proceedings was the negligence of the Second Criminal
Judge of Pichincha, who failed to undertake the steps ordered
insistently by the Eleventh Criminal Judge, and he was fined 30% of his
basic salary.
iv) On 26
January, 1995, the Second Criminal Judge of Pichincha appealed to have
the penalty amended or revoked, claiming that the delay in the process
was not his fault. This request was denied by the Second Division of the
Superior Court of Quito on 15 February, 1995. For his part, the Second
Criminal Judge of Pichincha appealed this ruling on 23 February 1995 to
the Superior Court, on the grounds that it was unfair and illegitimate.
On that day the Second Division of the Superior Court denied the appeal
brought by the Second Criminal Judge of Pichincha, as contrary to law.
29. On 26
October, 1995, the States's response was acknowledged, and the pertinent
portions were sent to the petitioners, giving them a period of 45 days
to submit their observations.
30. On 23
November, 1995, the petitioners presented their reply to the response of
the State, and argued as follows:
i) The
documentation sent by the State is correct, in that it demonstrates that
Mr. Bolívar Camacho had been given a dismissal. What is incorrect is
that the State says that Mr. Camacho could seek recourse of revision, an
argument that does not make sense, since under Art. 385 of the Code of
Criminal Procedures, it is only guilty sentences for which revision can
be sought, and that is clearly not the case here.
ii) The
fact is that in Ecuador, only persons who have been found guilty and
have subsequently been cleared through recourse of revision can seek
compensation. Art. 21 of the Ecuadorian Constitution provides that
“When a verdict of guilty is amended or revoked by recourse of
revision, the person who has suffered damages as a result of that
verdict shall be rehabilitated and compensated by the State, as provided
by Law.”
iii) For
its part, Art. 392 of the Code of Criminal Procedures provides that
“when the Supreme Court of Justice, accepting the recourse of
revision, revokes or amends the verdict, the person unjustly found
guilty shall be entitled to compensation...” The following articles of
that Code set out the procedure for securing such compensation.
iv) On the
other hand, Article 20 of the Ecuadorian Constitution provides that,
“The State and other entities of the public sector shall be obliged to
compensate private parties for any damages they may incur as a result of
the public services or actions of its officials and employees in the
performance of their duties.” Nevertheless, the petitioners point out
that in Ecuador there is no law or regulation to give effect to this
constitutional mandate, i.e. there is no procedure for claiming
compensation.
v) In the
specific case, Mr. Camacho Arboleda was damaged by the slowness of the
courts and by the discriminatory provisions of the Narcotics Law, since
he was detained for 63 months, i.e. 5 years and three months, and
charges against him were subsequently dismissed.
vi) The
petitioners point out that the State has not taken any action to remedy
the 63 months that Mr. Camacho was unjustly detained. For his part, Mr.
Camacho Arboleda has been unable to seek any administrative or judicial
redress, since there is no such possibility in the country. In light of
the impossibility of making any claim in this respect, it is thus
impossible to exhaust domestic remedies, since for the purposes of the
present case, these do not exist.
31. On 28
February, 1996, the Commission sent to the State the pertinent portions
of the observations of the petitioners, giving it a period of 30 days to
submit its response.
32. On 29 April, 1996, the State of Ecuador sent its response,
which states the following:
i) From
the documentation I am sending you, you will see that Bolívar Franco
Camacho Arboleda was suspected of the crime of trafficking in narcotics;
that a stay of proceedings was granted by the Eleventh Criminal Judge of
Pichincha, located in Santo Domingo de los Colorados; that nevertheless,
after consultation and prior drawing of lots,
the Second Division of the Superior Court of that District
revoked the stay and declared open the plenary stage; and the Fifth
Criminal Tribunal dismissed the case, referring it back to the same
Division in which it had been heard, and in principle confirming the
dismissal verdict, in a ruling issued on 24 January 1995.
ii) From
the contents of that verdict it arises that the Second Criminal Judge of
Pichincha was commissioned to undertake chemical analysis and
destruction of the narcotic substances, and he delayed in fulfilling
these formalities, for which reason he was fined an amount of 30% of his
basic salary.
iii) The
case came before the Fifth Criminal Tribunal of Pichincha on 27
February, 1995. On these grounds, the State believes that the complaint
of Bolívar Franco Camacho Arboleda is contrary to law, since at the
time he complained to the Inter-American Commission on Human Rights, the
case had already been resolved.
33. On 12 July,
1996, the Commission sent to the petitioners the pertinent portions of
the State's response, and gave them a period of 45 days to reply.
34. On 6 August,
1996, the petitioners submitted their observations, in which they state
their disagreement with the response of the State, with respect to the
argument that the charges had been dismissed and a penalty of 30% of
basic salary had been levied against the Second Criminal Judge for his
procedural delays, and that the claim of Camacho Arboleda was contrary
to law, since by the time he came to the Inter-American Commission on
Human Rights the case had already been decided.
35. The
petitioners then allege that, “In the first place, the complaint
relating to Camacho Arboleda was brought before the Commission
in November 1994, and the injured party was set free in February
1995. That is to say, when the complaint was brought, Mr. Camacho
Arboleda was still detained. In the second place, it is strange to think
that the case could be resolved by imposing a penalty on the Criminal
Judge, money that will never be of any benefit to the injured party.
By what authority will Camacho Arboleda be compensated for having
been deprived of his liberty arbitrarily for 63 months, or does the
State of Ecuador consider that because he has regained his liberty, it
is absolved of any form of obligation for irregularities?”
V.
CONSIDERATIONS OF ADMISSIBILITY
36. During its
95th Regular Session, held 24 February to 14 March, 1997, the
Commission decided on the admissibility of case 11.515.
V.I Competence
of the Commission
37. In light of
the background and the handling of the complaint described in the
preceding points, the Commission considered the conditions of
admissibility of the case in the following terms:
38. The
Commission may accept a case submitted for its consideration, provided
that it meets, in a prima facie manner, the formal requirements
for admissibility as stipulated in Article 46 of the Convention and
Article 32 of the Commission Regulations.
39. Competence ratione
loci empowers the Commission to receive petitions relating to
violations of human rights that affect a person under the jurisdiction
of a State Party to the American Convention. The fact that the events
contained in the complaint occurred within the territory of Ecuador,
which has been a State Party to the Convention since 28 December, 1977,
means that the Commission may examine the case of Camacho Arboleda.
40. In casu,
the complaint submitted by the petitioners refers to events that related
to presumed violations of
the right to liberty, the right to a fair trial and the right to
judicial protection of Mr. Camacho Arboleda, which rights are contained
in Articles 7, 8 and 25 of the American Convention on Human Rights, and
they therefore fall within the competence ratione materiae of the
Commission, pursuant to Articles 44 and 47 (b) of that international
agreement.
41. The
Commission considers that there are no grounds for claiming that the
complaint is manifestly groundless or out of order, since the
petitioners have demonstrated that the presumed violation can be imputed
to an agency or agents of the State, as provided in Article 47 of the
Convention. In the paragraphs relating to the analysis of exhaustion of
domestic remedies, it is noted that the presumed violations resulted
from acts or omissions committed by officials of Ecuador’s Judiciary.
V.2 Exhaustion
of remedies under domestic law
42. In the
course of proceedings under the present case, the State alleged failure
to exhaust remedies under domestic law, and the Commission will
therefore turn first to this requirement for admissibility.
43. The question
of exhaustion of remedies available within the domestic jurisdiction is
dealt with in Article 46. 1 (a) and (b) of the American Convention, as
follows:
Admission by the Commission of a petition or communication lodged
in accordance with Articles 44 or 45 shall be subject to the following
requirements:
a) that
the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law;
b) that
the petition or communication is lodged within a period of six months
from the date on which the party alleging violation of his rights was
notified of the final judgment.
44. The American
Convention on Human Rights provides, in Article 46.2, three exceptions
to the exhaustion of domestic remedies, as follows:
The provisions of paragraphs 1.a and 1.b of this article shall
not be applicable when:
a. the
domestic legislation of the State concerned does not afford due process
of law for the protection of the right or rights that have allegedly
been violated;
b. the
party alleging violation of his rights has been denied access to the
remedies under domestic law, or has been prevented from exhausting them;
or
c. there
has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.
45. Article 37
of the Commission Regulations adds that “Where the petitioner
maintains that it is impossible to prove the requirement stipulated in
this Article, it is incumbent upon the State against whom the complaint
is lodged to demonstrate to the Commission that domestic remedies were
not previously exhausted, unless this is clearly evident from the
documentation submitted in the petition”. Similarly, the
Inter-American Court has stated, in the preliminary exceptions to the
Velásquez Rodríguez case, that "where a State alleges that
remedies under domestic law were not exhausted, it is incumbent on the
State to demonstrate the existence and effectiveness of the domestic
remedies that ought to have been exhausted.[4]"
Thus, consistent with the principle of onus probandis incumbit
actoris, the State is obliged to show that such remedies have not
been exhausted, or as appropriate, to show which remedies have yet to be
exhausted, or why they were not effective.
46. In the case
of question, the State of Ecuador, in reporting on the most recent
judicial actions, pointed out that domestic remedies had not been
exhausted. It stated,
"in this case, the Superior Court of Appeals of Quito, on January
24, 1995, had issued a decision confirming the acquittal of Mr. Camacho
Arboleda, and, under Article 401 of the Code of Criminal Procedure, the
acquittal is final" and "under Article 385 and subsequent
articles of that code, only the person judged or the Court itself may
appeal for, or officially order, respectively, a review."
47. In effect,
the State of Ecuador states that charges against Camacho Arboleda were
dismissed on 24 January, 1995, and that he was released in the month of
February, 1995, but it omits to mention the period of five years that
elapsed between the arrest of Mr. Camacho Arboleda and the final
judgment of the Court, a period that represents an unwarranted delay in
the administration of justice, as contemplated in the exception to prior
exhaustion of domestic remedies contained in Article 46.2 (c) of the
Convention, and Article 37.2 (c) of the Commission Regulations.
48. With respect
to the victim’s demand to recover compensation for damages caused by
his five years of unjustified imprisonment, the State indicates that he
did not exhaust the remedy of revision pursuant to Article 385 of the
Code of Criminal Procedures. The petitioners, however, point to the
impossibility of exhausting such remedy, since Article 385 only applies
in the case of a verdict of guilty, which was not the situation in the
case before us.
49. The
Inter-American Court of Human Rights has stated the following in this
respect: “...where exceptions to the rule of exhaustion of domestic
remedies are invoked, such as the ineffectiveness of those remedies or
the lack of due process of law, the effect is not only to absolve the
injured party from the obligation to seek such remedies, but also,
indirectly, to impute to the State concerned a further violation of its
obligations under the Convention. Under these circumstances, the
question of remedies under domestic law becomes a matter of
substance.”[5]
As the petitioners maintain, resort to domestic remedies in the case of
the Camacho Arboleda would be fruitless, since Ecuadorian legislation
does not afford due process of law for the protection of the right or
rights invoked, and this has the effect of depriving the victim of the
ability to defend himself, which explains why the Commission must
examine the present case.
50. The
Commission considers that at this stage of the analysis, the question of
non-exhaustion of domestic remedies relates to the substance of the
case, given that the plaintiffs allege the lack of domestic legislation
that would give the victim access to a remedy to protect his rights.
Consequently, on the basis of the exception in Article 46.2 (a) relating
to the exhaustion of remedies under domestic law, the Commission will
continue its processing of the case and will in due course express
itself on the substance of the complaint.
V.3 Submission
of the petition within the time limits established by the
Convention
51. With respect
to the time limit (ratione temporis), as stated in Article 46 (b)
of the Convention and Article 38 of the Commission’s regulations, the
petition must be submitted within a period of six months from the date
on which the petitioner was notified of the content of the final
judgment (res judicata).
52. The
Commission considers that the six-month period following notification of
final judgment, stipulated in Article 38 (1) of the Commission
Regulations for submission of a complaint before the Commission, does
not apply in the present case, in light of the exception contained in
Article 37.2 (c) of the Commission Regulations, which provides as
follows:
The provisions relating to the exhaustion of remedies under
domestic law shall not apply where:
a. the
domestic legislation of the State concerned does not afford due process
of law for the protection of the right or rights that have allegedly
been violated.
53. In such
circumstances, the Regulations provide in Article 38.2 that the time
limit shall be set at “a reasonable period of time”, from the date
on which the presumed violation of rights occurred, to be determined by
the Commission in accordance with the specific circumstances of the
case.
54. For these
reasons, the Commission is competent to hear the present case.
V.4 Duplication
of procedures at the international level
55. The
Commission notes that the case of Mr. Camacho Arboleda is not pending in
another international proceeding for settlement, since such an exception
has not been alleged by any of the parties, nor can it be deduced from
the documentation submitted with the petition. Nor is the substance of
this complaint substantially the same as one previously studied by the
Commission or any other international body under Article 47 (d) of the
Convention and Article 39.1 (a) and (b) of the Regulations. The
Commission therefore is not prevented from hearing the present
complaint.
VI. OFFER
OF A FRIENDLY SETTLEMENT
56. The
Commission considers that the events underlying the complaint are of the
kind that may be resolved through application of the procedure for
friendly settlement, provided in Article 48 (1.f) of the Convention and
in Article 45 of its Regulations, for which reason it stands at the
disposal of the parties with a view to reaching a friendly settlement of
the matter on the basis of respect for human rights.
57. Taking the
foregoing into account, the Inter-American Commission on Human Rights
decides:
58. To declare
the admissibility of case 11.515, concerning Mr. Bolívar Franco Camacho
Arboleda.
59. To stand at
the disposal of the parties in reaching a friendly settlement of the
matter, on the basis of respect for the human rights recognized in the
American Convention on Human Rights.
To this end, the parties must indicate to the Commission their
desire to initiate friendly settlement procedures, within thirty days
after notification of this report.
60. To publish
the present report on admissibility in the Annual Report to the General
Assembly of the OAS.
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[1]
In the records of the IACHR, there is a copy of the communication
sent on 6 April, 1992, to the Second Criminal Judge of Pichincha, by
the Eleventh Criminal Judge of Pichincha, to which is attached the
request for a chemical analysis of the drug and receipt of the
investigatory testimony and the psychosomatic examination of the
accused, Camacho Arboleda, in connection with the criminal
proceedings, so that the case could be handled in a timely manner.
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