REPORT Nº 104/01* CASE
11.441 RODRIGO
ELICIO MUÑOZ ARCOS, LUIS ARTEMIO MUÑOZ ARCOS, JOSÉ
MORALES RIVERA, SEGUNDO MORALES BOLAÑOS ECUADOR October
11, 2001
I.
SUMMARY
1.
On November 9, 1994, the Comisión Ecuménica de Derechos
Humanos (“CEDHU”) (hereinafter “the petitioner”) submitted a
petition to the Inter-American Commission on Human Rights (hereinafter
“the Commission” or “the IACHR”) against the Republic of Ecuador
(hereinafter “the State”) in which it alleged the violation of the
following rights protected by the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”):
the right to humane treatment (Article 5), the right to personal
liberty (Article 7), the right to a fair trail (Article 8), the right to
private property (Article 21), and the right to judicial protection
(Article 25), in violation of the obligations set forth in Article 1(1) to
the detriment of Messrs. Rodrigo Elicio Muñoz Arcos, Luis Artemio Muñoz
Arcos, José Vicente Morales Rivera, and Segundo Hilarión Morales Bolaños,
all of Colombian nationality.
2.
The parties reached four friendly settlement agreements in this
case on August 15, 2001. This
report consolidates, in a brief presentation, the facts and the text of
the settlements reached in the four agreements, in keeping with Article 49
of the Convention.
II.
FACTS
3.
The Comisión Ecuménica de Derechos Humanos (“CEDHU”)
submitted the complaint regarding the detention of four Colombian
citizens, Rodrigo Elicio Muñoz Arcos, Luis Artemio Muñoz Arcos, José
Morales Rivera, and Segundo Morales Bolaños, who were suspected of the
crimes of robbery, attempted kidnapping, and homicide, by the members of
the Ecuadorian police in the area of Tulcán on August 26, 1993.
It was learned that the aforementioned persons were detained and
taken to the central office of the Office of Criminal Investigation (OID: Oficina
de Investigación del Delito), where they were held incommunicado for
13 days; several thousand pesos and sucres were taken from
them. It is also alleged that
they were tortured by members of the OID.
The medical certificates for these persons indicate that they
presented excoriations, hematomas, pains, and a fracture of the lower jaw
as a result of being beaten, suspended, and kicked about various parts of
the body. The detainees were
transferred to the Tulcán jail on September 7, 1993. The alleged perpetrators are members of the National Police,
Carchi Command No. 10: Lt.
Col. Carlos Antonio Lozada Aldas, Corporal José Luis Cando Pérez, and
Dr. Edgar Pacheco Mena, who signed the statements made by the persons
tortured.
4.
In the pertinent respects, the medical certificates of the Dirección
Nacional de Rehabilitación Social (National Bureau for Social
Rehabilitation), dated October 13, 1993, indicate as follows as regards
the diagnosis of each detainee: (a) Luis Artemio Muñoz Arcos: multiple traumas and fracture
of the lower jaw; (b) Rodrigo Muñoz Arcos: trauma to the thorax; (c)
Segundo Hilarión Morales Baños: slight trauma to the left eye; (d) José
Vicente Morales Rivera: apparently healthy patient. (On September 16,
1993, he underwent a private medical examination in which he was diagnosed
as follows: intense pain in
the right temporal region, pain in the sternal apex, which is fractured,
excoriations in the anterior right and left tibia, scarred excoriations to
the wrists. The lesions were caused by the traumatic action of a hard
blunt object, such as a fist, a kick, or a stick.)
III.
PROCESSING BEFORE THE COMMISSION
5.
On July 10, 1995, the Commission sent the complaint concerning
Rodrigo Muñoz Arcos et al. to the Government of Ecuador. On August 3, 1995, the Government of Ecuador answered the
complaint. The procedure for
responding to petitions set out in the rules of procedure was followed.
6.
On February 9, 1999, the Commission placed itself at the disposal
of the parties to pursue a friendly settlement, which was signed on August
15, 2001, in the presence of Marta Altolaguirre, member
of the IACHR and Rapporteur for Ecuador, who traveled to Quito to
facilitate the agreement. The
parties asked the Commission to ratify this agreement in every respect and
supervise compliance with it. IV.
FRIENDLY SETTLEMENT AGREEMENT
7.
The friendly settlement agreements signed by the parties state as
follows: I.
BACKGROUND The
Ecuadorian State, through the Office of the Attorney General, with a view
to promoting and protecting human rights and given the great importance of
the full observance of human rights at this time for the international
image of our country, as the foundation of a just, dignified, democratic,
and representative society, has decided to take a new course in the
evolution of human rights in Ecuador. The
Office of the Attorney General has initiated conversations with all
persons who have been victims of human rights violations, aimed at
reaching friendly settlement agreements to provide reparations for the
damages caused. The Ecuadorian State, in strict compliance with the obligations it assumed upon ratifying the American Convention on Human Rights and other international human rights law instruments, is aware that any violation of an international obligation that has caused damages triggers the duty to make adequate reparations--monetary reparations and criminal punishment of the perpetrators being the most just and equitable form. Therefore the Office of the Attorney General and [Rodrigo Elicio Muñoz Arcos], [Luis Artemio Muñoz Arcos], [José Vicente Morales Rivera], [Segundo Hilarión Morales Bolaños], have reached a friendly settlement, pursuant to the provisions of Articles 48(1)(f) and 49 of the American Convention on Human Rights and Article 41 of the Rules of Procedure of the Inter-American Commission on Human Rights. II.
THE PARTIES The
following persons were present at the signing of this friendly settlement
agreement: a. For the first party, Dr. Ramón Jiménez Carbo, Attorney General of the State, as indicated in his appointment and certificate of office, which are attached as qualifying documents;
b.
For the second party [Miss Doris Elizabeth Posso Moran, of
Colombian nationality, with citizen identification number 37,009,466, on
behalf and in representation of Mr. Rodrigo Elicio Muñoz Arcos, as
appears from the special power of attorney executed before the First
Notary of the circuit of San Juan de Pasto, and legalized by the Consul
General in Ipiales, Colombia, a copy of which is attached hereto as a
qualifying document] [Mr. Luis Artemio Muñoz Arcos, of Colombian
nationality, with citizen identification number 5,209,254, which is
attached hereto as a qualifying document] [Mr. José Vicente Morales
Rivera, of Colombian nationality, with citizen identification number
5,210,006, which is attached hereto as a qualifying document] [Mr. Segundo
Hilarión Morales Bolaños, of Colombian nationality, with citizen
identification number 5,211,202, which is attached hereto as a qualifying
document]. III.
STATE RESPONSIBILITY AND ACCEPTANCE The
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mr. [Rodrigo Elicio Muñoz Arcos], [Luis
Artemio Muñoz Arcos], [José Vicente Morales Rivera], [Segundo Hilarión
Morales Bolaños], enshrined in Article 5 (right to humane treatment),
Article 8 (fair trial), Article 21 (private property), Article 7 (personal
liberty), and Article 25 (judicial protection), and at the same time the
general obligation contained in Article 1(1) of the American Convention on
Human Rights and other international instruments, considering that the
violations were committed by State agents, which could not be disproved by
the State, giving rise to State responsibility. Given
the above, the Ecuadorian State accepts the facts in case 11.441 before
the Inter-American Commission on Human Rights and undertakes the necessary
reparative steps to compensate the victims, or their successors, for the
damages caused by those violations. IV.
COMPENSATION In
view of the foregoing, the Ecuadorian State, through the Attorney General,
as the sole judicial representative of the Ecuadorian State, pursuant to
Article 215 of the Constitution of Ecuador, enacted in Official Register Nº
1 and in force since August 11, 1998, is awarding [Rodrigo Elicio Muñoz
Arcos, through his representative Miss Doris Elizabeth Posso Moran, a
one-time compensatory payment in the amount of ten thousand US dollars
(US$ 10,000), to be paid from the National Budget] [Luis Artemio Muñoz
Arcos, a one-time compensatory payment in the amount of ten thousand US
dollars (US$ 10,000), to be paid from the National Budget], [José Vicente
Morales Rivera, a one-time compensatory payment in the amount of ten
thousand US dollars (US$ 10,000), to be paid from the National Budget],
[Segundo Hilarión Morales Bolaños, a one-time compensatory payment in
the amount of ten thousand US dollars (US$ 10,000), to be paid from the
National Budget]. This
compensation covers the consequential damages, loss of income, and moral
damages suffered by [Rodrigo Elicio Muñoz Arcos], [Luis Artemio Muñoz
Arcos], [José Vicente Morales Rivera], [Segundo Hilarión Morales Bolaños],
as well as any other claims that [Rodrigo
Elicio Muñoz Arcos], [Luis Artemio Muñoz Arcos], [José Vicente Morales
Rivera], [Segundo Hilarión Morales Bolaños] may have, regarding the
subject of this agreement, under domestic and international law, and is
chargeable to the National Budget. To this end, the Office of the Attorney
General will notify the Ministry of Economy and Finance, for it to carry
out this obligation. V.
PUNISHMENT OF THE PERSONS RESPONSIBLE The
Ecuadorian State pledges to bring civil and criminal proceedings and
pursue administrative sanctions against those persons who are alleged to
have participated in the violation in the performance of State functions
or under the color of public authority. The
Office of the Attorney General pledges to encourage the State Attorney
General, the competent judicial organs, and public agencies or private
institutions to contribute legal evidence to determine the liability of
those persons. If admissible, the prosecution will be subject to the
constitution and laws of the Ecuadorian State. VI.
RIGHT TO SEEK INDEMNITY
The
Ecuadorian State reserves the right to seek indemnity, pursuant to Article
22 of the Constitution of the Republic of Ecuador, from those persons
found responsible for human rights violations through a final and firm
judgment handed down by the country’s courts or when administrative
liability is found, in keeping with Article 8 of the American Convention
on Human Rights. VII. TAX
EXEMPTION The
payment made by the Ecuadorian State to the other party to this agreement
is not subject to any current or future taxes. VIII. REPORTING The
Ecuadorian State, through the Office of the Attorney General, agrees to
report every three months to the Inter-American Commission on Human Rights
on compliance with the obligations assumed by the State in this friendly
settlement agreement. In
keeping with its consistent practice and obligations under the American
Convention, the Inter-American Commission on Human Rights will oversee
compliance with this agreement. IX.
LEGAL BASIS The
compensatory damages that the Ecuadorian State is awarding to Mr. [Rodrigo
Elicio Muñoz Arcos], [Luis Artemio Muñoz Arcos], [José Vicente Morales
Rivera], [Segundo Hilarión Morales Bolaños] are provided for in Articles
22 and 24 of the Constitution of the Republic of Ecuador, for violation of
the constitution, other national laws, and the standards in the American
Convention on Human Rights and other international human rights
instruments. This
friendly settlement is entered into based on respect for the human rights
enshrined in the American Convention on Human Rights and other
international human rights instruments and on the policy of the Government
of Ecuador to respect and protect human rights. X.
NOTIFICATION AND CONFIRMATION
Mr.
[Rodrigo Elicio Muñoz Arcos], [Luis Artemio Muñoz Arcos], [José Vicente
Morales Rivera], [Segundo Hilarión Morales Bolaños] specifically
authorizes the Attorney General to notify the Inter-American Commission on
Human Rights of this friendly settlement agreement, so that the Commission
may confirm and ratify it in its entirety. XI.
ACCEPTANCE
The
parties to this agreement freely and voluntarily express their conformity
with and their acceptance of the content of the preceding clauses and
state for the record that they hereby end the dispute before the
Inter-American Commission on Human Rights on the international
responsibility of the State for violating the rights of Mr. [Rodrigo
Elicio Muñoz Arcos], [Luis Artemio Muñoz Arcos], [José Vicente Morales
Rivera], [Segundo Hilarión Morales Bolaños].
V.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
8.
The Commission determined that the settlement agreement transcribed
is compatible with the provisions of Article 48(1)(f) of the American
Convention.
VI.
CONCLUSIONS
9.
The Commission values the signing of a friendly settlement
agreement in the terms of the American Convention, by both the State and
the petitioners.
10.
The IACHR shall continue to monitor compliance with the commitments
assumed by Ecuador regarding the criminal prosecution of the persons
implicated in the facts alleged.
11.
The IACHR verifies that the friendly settlement provisions of the
American Convention make it possible to conclude individual cases in a
non-contentious manner, and has proved, in cases regarding several
countries, to be an important means of resolving alleged human rights
violations that can be used by both parties (petitioner and state). THE
INTER‑AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
1.
To certify that the State has complied with the commitment to pay
US$ 10,000 to each victim in this case, as compensation.
2.
To remind the State that it must comply fully with the friendly
settlement agreement by instituting judicial proceedings against the
persons implicated in the violations alleged.
3.
To continue to monitor and supervise compliance with each and every
point of the friendly settlement agreements, and, in this context, to
remind the State, through the Office of the Attorney General, of its
commitment to report to the IACHR every three months as to compliance with
the obligations assumed by the State under these friendly settlements.
4.
To make this report public and include it in its Annual Report to
the OAS General Assembly. Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., October 11, 2001. (Signed): Claudio Grossman, President; Juan Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President; Commissioners Hélio Bicudo, Robert K. Goldman, and Peter Laurie. [ Table of Contents | Previous | Next ]
*
Commissioner Julio Prado Vallejo, of Ecuadorian nationality, did not
participate in the discussion of this case, in keeping with Article 17
of the Commission’s Rules of Procedure.
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