Jorge Villacrés Ortega v. Eduador, Communication
No. 481/1991, U.N. Doc. CCPR/C/59/D/481/1991 (8 April 1997).
Jorge Villacrés Ortega v.
Eduador, Communication No. 481/1991, U.N. Doc. CCPR/C/59/D/481/1991
(8 April 1997).
Distr. RESTRICTED [*] */
CCPR/C/59/D/481/1991
8 April 1997
Original: ENGLISH
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HUMAN RIGHTS COMMITTEE
Fifty-ninth session
24 March - 11 April 1997
VIEWS
Communication No. 481/1991
Submitted by: Jorge
Villacrés Ortega
[represented by Ha. E. Monge]
Victim: The
author
State party:
Ecuador
Date of communication: 4 November 1991 (initial submission)
Date of adoption of Views: 8 April 1997
On 8 April 1997, the Human Rights Committee
adopted its Views under article 5, paragraph 4, of the Optional
Protocol in respect of communication No. 481/1991. The text of the
Views is appended to the present document.
[ANNEX]
VWS481.59e cb
GE.97-
ANNEX*
Views of the Human Rights Committee under
article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights
- Fifty-ninth
session -
concerning
Communication No. 481/1991
Submitted by: Jorge
Villacrés Ortega
[represented by Ha. E. Monge]
Victim: The
author
State party:
Ecuador
Date of communication: 4 November 1991 (initial submission)
Date of decision on
admissibility: 16 March 1995
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 8 April
1997,
Having concluded its
consideration of communication No. 481/1991 submitted to the Human
Rights Committee on behalf of Mr. Jorge Villacrés Ortega under the
Optional Protocol to the International Covenant on Civil and
Political Rights,
Having taken into account all written information made available to it by the author
of the communication, his counsel and the State party,
Adopts the
following:
Views under article 5, paragraph 4, of the
Optional Protocol**
1. The author of the communication is Jorge
VillacrÈs Ortega, an Ecuadorian citizen, residing in Quito,
Ecuador. At the time of submission of the communication he was
imprisoned at the C·rcel de Varones at Quito. He claims to be a
victim of violations by Ecuador of articles 2, 7, 9 and 14 of the
International Covenant of Civil and Political Rights. He is
represented by the ComisiÛn EcumÈnica de Derechos
Humanos (CEDHU), a non-governmental organization in Quito,
Ecuador.
The facts as submitted by the author
2.1 The author is a carpenter by profession. He
was detained on 19 October 1989 by police officers, who
found less than one gram of cocaine in his pockets, and arrested him
on suspicion of trafficking in cocaine. He was tried by the Tribunal
Cuarto de Pichincha, found guilty as charged and sentenced, on 3 June
1991, to eight years' imprisonment. He appealed to the Supreme Court
of Justice, which quashed the conviction and ordered him sent to a
rehabilitation programme for drug addicts.
2.2 With regard to his arrest, the author states
that he was taken to Interpol by agents of the SIC-P (security
police), and that a representative of CEDHU visited him at the police
station and saw the traces of beatings on his back, arm and
stomach.
2.3 He admitted to possession of cocaine, which he
claimed to have bought for his own consumption. The forensic tests
carried out proved that he was an addict. Although the report from
the office of the public prosecutor recommended that he be sent to a
hospital for disintoxication treatment, this was ignored by the
sentencing judge.
2.4 Counsel states that the author was tortured by
prison personnel following an escape attempt by the author's
cellmates, on 1 June 1990. The medical report1 stated that "... he had a
reddish inflammation on both eyelids due to the introduction of aji
(peppers) and gas; tear and prickly conjunctivitis; multiple round
black traces, on his abdomen and thorax, resulting from the
application of electric discharges, bruises on his thigh and skin
stripped off his leg ...".
2.5 With respect to the exhaustion of domestic
remedies, the author, while in prison, filed a recurso de amparo. There is no
further information concerning the status of that recourse.
The complaint
3.1 The author claims to be a victim of a
violation of article 7 because he was subjected to torture and
ill-treatment following his arrest. This was attested to by a member
of CEDHU.
3.2 Although the author does not specifically
invoke article 10 of the Covenant, the facts before the Committee
concerning alleged ill-treatment while the author was imprisoned
appear to raise issues under that article.
3.3 The author also claims to be a victim of a
violation of article 9 because he was subjected to arbitrary arrest
and detention, although he was not a drug trafficker, but only a
consumer.
3.4 It is further submitted by the author that his
trial was unfair, in violation of article 14 of the Covenant. In this
respect, he contends that he was convicted despite the reports
submitted by the public prosecutor's office recommending that he
undergo drug rehabilitation treatment, in accordance with Ecuadorian
law.
The Committee's decision on
admissibility
4. On 26 August 1992, the communication was
transmitted to the State party, which was requested to submit to the
Committee information and observations in respect of the question of
admissibility of the communication. Despite two reminders, sent on 10
May 1993 and 9 December 1994, no submission had been received from
the State party prior to the Committee's admissibility
decision.
5.1 Before considering any claims contained in a
communication, the Human Rights Committee must, in accordance with
rule 87 of its rules of procedure, decide whether or not it is
admissible under the Optional Protocol to the Covenant.
5.2 The Committee ascertained, as required under
article 5, paragraph 2(a), of the Optional Protocol, that the same
matter had not been examined under another procedure of international
investigation or settlement.
5.3 The Committee noted with concern the absence
of cooperation from the State party, despite two reminders addressed
to it. On the basis of the information before it, the Committee found
that it was not precluded from considering the communication under
article 5, paragraph 2(b), of the Optional Protocol.
5.4 With respect to the author's complaint that he
had been subjected to torture and ill-treatment in violation of
articles 7 and 10 of the Covenant, as attested to by a member of
CEDHU, the Committee found that the facts as submitted by the author
were substantiated, for purposes of admissibility.
5.5 The Committee found that, for purposes of
admissibility, the arrest of the author on possession of cocaine was
not arbitrary. Nor had the author submitted sufficient evidence to
substantiate, for purposes of admissibility, a claim of a violation
of article 14 of the Covenant.
6. On 16 March 1995, the Human Rights Committee
decided that the communication was admissible. The author should be
requested to provide medical reports in respect of the allegations of
ill-treatment he had suffered.
Observations by the State party about the
merits of the case and comments thereon by the author
7.1 In two submissions on the merits of the
communication, dated 18 October 1995 and 23 May 1996, the
State party states that Jorge Oswaldo Villacrés Ortega
has been arrested 22 times on a variety of offences, including the
1989 detention for possession of cocaine.
7.2 With regard to the allegations of torture and
ill-treatment made by the author (see paragraphs 2.2 and 2.4 above),
the State party forwards the results of a police investigation, dated
1 April 1996 and signed by two police officials of the Pichincha
District, indicating that no medical report or other evidence of
torture or ill-treatment of Mr. Villacrés has been found.
Reference is made to allegations by the defence counsel of Mr.
Villacrés to the effect that a medical report did exist. The police
inspectors allegedly were unable to obtain a copy of the report from
the CEDHU office at Quito.
8.1 By a submission of 31 May 1996, CEDHU confirms
that Mr. Villacrés was detained on
19 October 1989 and released on 17 January 1992. With respect to the
alleged ill-treatment during detention, CEDHU states that it does not
have the medical report requested by the Committee in paragraph 6(c)
of the admissibility decision. CEDHU contends that the report is
probably filed with the record of the VillacrÈs case before
the Ecuadorian Supreme Court.
8.2 On 12 October 1996, CEDHU submitted a copy of
the medical report, dated 9 June 1990 and certified before a
magistrate (Juez Primero de lo Penal de ProcuradurÌa), stating
that the injuries suffered were consistent with those produced by
irritating substances and by the application of electrodes.
Examination on the merits
9.1 The Human Rights Committee has considered the
present communication in the light of all the information made
available to it by the parties, as provided in article 5, paragraph
1, of the Optional Protocol.
9.2 With regard to the author's allegations of
ill-treatment (see paragraphs 2.2 and 2.4 above), two issues
arise: in respect of the first, i.e., the ill-treatment the author
suffered at the hands of the police following his arrest, the
Committee considers that this claim has not been substantiated. As to
the second issue, i.e., the ill-treatment the author suffered after
an escape attempt by his cellmates, the Committee has noted the State
party's claim that it was unable to trace the author's medical
reports, although the copy in the case file reveals that this report
was certified in the presence of a magistrate. In the circumstances,
due weight must be given to the author's allegations, to the extent
that they have been substantiated by the medical reports submitted by
counsel, in particular that of 9 June 1990, where it is
confirmed that the author showed signs of ill-treatment. In the
Committee's view, the treatment suffered by the author after the
escape attempt of his cellmates amounts to cruel and inhuman
treatment, in violation of article 7 and article 10, paragraph 1, of
the Covenant.
10. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is of the view that the facts
before it disclose violations of article 7 and article 10, paragraph
1, of the Covenant.
11. Pursuant to article 2, paragraph 3(a), of the
Covenant, the author is entitled to an effective remedy, entailing
compensation for the ill-treatment suffered. The Committee reaffirms
the obligation to treat individuals deprived of their liberty with
respect for the inherent dignity of the human person. The State party
is under an obligation to ensure that similar events do not occur in
the future.
12. Bearing in mind that, by becoming a State
party to the Optional Protocol, the State party has recognized the
competence of the Committee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of
the Covenant, the State party has undertaken to ensure to all
individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and
enforceable remedy in case a violation is established, the Committee
wishes to receive from the State party, within 90 days, information
about the measures taken to give effect to its Views.
[Adopted in English, French and Spanish, the
English text being the original version. Subsequently to be issued
also in Arabic, Chinese and Russian as part of the annual report to
the General Assembly.]
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Made public by decision of the Human Rights Committee.