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BEFORE: |
CHAIRMAN: Mr. Rajsoomer Lallah
(Mauritius)
VICE-CHAIRMEN: Mr. Joseph A. L. Cooray (Sri Lanka), Mr. Vojin
Dimitrijevic (Yugoslavia), Mr. Alejandro Serrano Caldera (Nicaragua)
RAPPORTEUR: Mr. Fausto Pocar (Italy)
MEMBERS: Mr. Francisco Jose Aguilar Urbina (Costa Rica), Mr. Nisuke
Ando (Japan), Miss Christine Chanet (France), Mr. Omran El Shafei
(Egypt), Mr. Janos Fodor Hungary, Mrs. Rosalyn Higgins (United
Kingdom), Mr. Andreas V. Mavrommatis (Cyprus), Mr. Joseph A.
Mommersteeg (Netherlands), Mr. Rein A. Myullerson (Union of Soviet
Socialist Republics), Mr. Birame Ndiaye (Senegal), Mr. Julio Prado
Vallejo (Ecuador), Mr. S. Amos Wako (Kenya), Mr. Bertill Wennergren
(Sweden)
The thirty-sixth session was
attended by all the members of the Committee except Mr. Mommersteeg;
Mr. Aguilar Urbina, Miss Chanet and Messrs. Cooray, Mavrommatis and
Wako attended only part of that session. |
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PermaLink: |
http://www.worldcourts.com/hrc/eng/decisions/1989.07.26_Bolanos_v_Ecuador.htm |
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Citation: |
Bolanos v. Ecuador, Comm. 238/1987,
U.N. Doc. A/44/40, at 246 (HRC 1989) |
Alt. Style
of Cause: |
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Publications: |
Report of the Human Rights
Committee, U.N. GAOR, 44th Sess., Supp. No. 40, U.N. Doc. A/44/40,
Annex X, sect. I, at 246 (Sep.29, 1989); Office of the U.N. High
Comm'r for Human Rights, Selected Decisions of the Human Rights
Committee under the Optional Protocol, Vol. III, at 231, U.N. Doc.
CCPR/C/OP/3, U.N. Sales No. E.02.XIV.1 (2002) |
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The Human Rights Committee
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 26 July 1989,
Having concluded its consideration of communication No. 238/1987, submitted
the Committee by Mr. Floresmilo Bolaños 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 and by the State party,
Adopts the following:
VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL
1. The author of the communication (initial letter dated 13 July 1987 and
further letters of 2 February, 14 March and 22 September 1988) is Floresmilo
Bolaños, an Ecuadorian citizen who claims to be a victim of violations of
articles 3, 9 and 14 of the International Covenant on Civil and Political
Rights by Ecuador.
2.1 He states that he has been detained since November 1982 without bail at
the Centro de Detencion Provisional in Quito in connection with the
investigation of the murder of Mr. Ivan Egas, whose body was found on 11
September 1982 in the lions' cage at the zoological garden of the Military
Academy where the author has been employed. He claims to be innocent of the
crime and that he was arrested without any evidence against him. It is
suggested that Ivan Egas had been the lover of a colonel's wife, that the
colonel had him killed and that the body was subsequently taken by other
persons into the lions' cage. He further alleges that his right to be tried
within a reasonable time has been violated, in particular, that while
Ecuadorian law provides that detention before indictment should not exceed
60 days, he was detained for over five years prior to being indicted in
December 1987. The delay in the proceedings is allegedly attributable to the
involvement of military personnel, who are using the author as a scapegoat
to cover the colonel's crime. The author furthermore complains that whereas
he has been continuously kept under detention, the other persons accused
have been at liberty pending trial.
2.2 With respect of the exhaustion of domestic remedies, the author states
that the pre-trial investigation was completed only in December 1987, when
the President of the High Court of Justice in Quito indicted him and six
other persons. The author appealed without success against the decision of
the High Court to indict him as an accomplice.
3. By its decision of 19 October 1987, the Working Group of the Human Rights
Committee transmitted the communication under rule 91 of the Committee's
rules of procedure to the State party, requesting information and
observations relevant to the question of the admissibility of the
communication.
4.1 The Committee took note of the observations of the State party, dated 2
February 1988, that proceedings against the author were under way in the
High Court of Justice in Quito, and of the author's comments thereon, dated
14 March 1988, that, because of the alleged involvement of military figures
in the case, proceedings before the High Court had been unreasonably
prolonged and that he had already been detained for five years and six
months.
4.2 The Committee ascertained, as it is required to do under article 5,
paragraph 2 (a), of the Optional Protocol, that the same matter was not
being examined under another procedure of international investigation or
settlement. With regard to article 5, paragraph 2 (b), of the Optional
Protocol, concerning the exhaustion of domestic remedies, the Committee
noted that the judicial proceedings against Mr. Bolaños had been
unreasonably prolonged and that the State party had not indicated that there
were effective remedies against such prolongation. In the circumstances, the
Committee found that it was not precluded from considering the
communication.
5. On 7 April 1988, the Human Rights Committee decided that the
communication was admissible.
6.1 By note of 29 July 1988, the State party indicates that on 24 June 1988
a hearing was held at the Superior Court in Quito concerning the murder of
Ivan Egas. The State party does not provide any explanations or statements
concerning the specific violations of the Covenant alleged to have occurred.
6.2 In a letter dated 22 September 1988 the author reiterates his innocence,
observing that he has been arbitrarily detained for six years and that no
judgement has yet been issued, or is expected in the near future, in his
case.
7. The Human Rights Committee has considered the present communication in
the light of all written information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol. In adopting
its views, the Committee stresses that it is not making any finding on the
guilt or innocence of Mr. Bolaños but solely on the question whether any of
his rights under the Covenant have been violated.
8.1 The author of the communication claims that there have been breaches of
articles 3, 9 and 14 of the Covenant. In formulating its views the Committee
takes into account the failure of the State party to furnish certain
information and clarifications, in particular with regard to the reasons for
Mr. Bolaños' detention without bail and for the delays in the proceedings,
and with regard to the allegations of unequal treatment of which the author
has complained. It is implicit in article 4, paragraph 2, of the Optional
Protocol that the State party has the duty to investigate in good faith all
allegations of violations of the Covenant made against it and its
authorities, and to furnish to the Committee all relevant information. In
the circumstances, due weight must be given to the author's allegations.
8.2 With respect to the author's allegations concerning a violation of
article 3 of the Covenant, it is not clear in what particular respect that
article has been invoked and the Committee is unable to make a finding in
this regard.
8.3 With respect to the prohibition of arbitrary arrest or detention
contained in article 9 of the Covenant, the Committee observes that although
the State party has indicated that the author was suspected of involvement
in the murder of Ivan Egas it has not explained why it was deemed necessary
to keep him under detention for five years prior to his indictment in
December 1987. In this connection the Committee notes that article 9,
paragraph 3, of the Covenant provides that anyone arrested on a criminal
charge "shall be entitled to trial within a reasonable time or to release.
It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear for
trial ...". The Committee further observes that article 9, paragraph 5, of
the Covenant provides that "anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compensation".
8.4 With respect to the requirement of a fair hearing within the meaning of
article 14, paragraph 1, of the Covenant, the Committee notes that the
concept of fair hearing necessarily entails that justice be rendered without
undue delay, and refers in this connection to its prior case law (Muñoz v.
Peru, communication No. 203/1986, views adopted on 4 November 1988, para.
11.2). Furthermore, the Committee notes that article 14, paragraph 3 (c),
guarantees the right to be tried without undue delay, and concludes that, on
the basis of the information before it the delays encountered by the author
in the determination of the charges against him are incompatible with the
aforementioned provision.
9. 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 of this case disclose violations of
article 9, paragraphs 1 and 3, because Mr. Floresmilo Bolaños was deprived
of liberty contrary to the laws of Ecuador and not tried within a reasonable
time., and of article 14, paragraphs 1 and 3 (c), of the Covenant, because
he was denied a fair hearing without undue delay.
10. The Committee, accordingly, is of the view that the State party is under
an obligation, in accordance with the provisions of article 2 of the
Covenant, to take effective measures to remedy the violations suffered by
Mr. Floresmilo Bolaños, to release him pending the outcome of the criminal
proceedings against him, and to grant him compensation pursuant to article
9, paragraph 5, of the Covenant. |
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