26 March 1992

Communication No. 277/1988; U.N. Doc. CCPR/C/44/D/277/1988

human rights committee

Marieta Teran Jijón and Juan Fernando Teran Jijón

v.

ecuador

VIEWS

THE FACTS AS SUBMITTED BY THE AUTHOR:

1.1       The author of the communication is Marieta Terán Jijón, an Ecuadorian citizen born in 1929, residing in Quito, Ecuador. She submits the communication on behalf of her son Juan Fernando Terán Jijón, an Ecuadorian citizen born in 1966, at the time of submission of the communication (21 January 1988) detained at the Penal Garcia Moreno in Quito, Ecuador.

1.2       After two years of detention, Juan Fernando Terán Jijón was released; he left Ecuador in August 1988 and currently resides in Mexico, where he pursues university studies. After his release, Mr. Terán Jijón confirmed the exactitude of his mother's submissions and joined the communication as co-author, expressing the wish that the Committee proceed with the examination of the case.

1.3       Juan Fernando Terán Jijón was arrested on 7 March 1986 in Quito by members of an anti-subversive police unit known as Escuadron Volante; according to the author, he was about to visit a relative. He claims to have been kept incommunicado for five days, shackled and blindfolded, subjected to physical and mental torture, and forced to sign more than ten blank sheets of paper. He was then transferred to the Garcia Moreno prison. The report of a medical examination carried out in the infirmary of the prison on 13 March 1986 records haematomas and skin lesions all over his body.

1.4       The author was charged with participation in the crime of bank robbery, perpetrated on 7 March 1986 against the Banco de Pichincha and the Caja de Credito Agricola of Sangolqui. He denies any involvement in the offence.

1.5       On 27 January 1987 the Tribunal Segundo Penal de Pichincha convicted and sentenced him to one year of imprisonment. Although this term was fully served on 7 March 1987 and the Tribunal ordered his release on 9 March 1987, he was not released but instead re-indicted, allegedly on the same facts and for the same offence.

1. 6      With regard to the issue of exhaustion of domestic remedies, Mrs. Teran Jijón states that she instituted an action for amnaro, appealed to the Tribunal de Garantias Constitucionales and to the National Congress. On 18 March 1988, her son was released, pending the adjudication of other criminal proceedings, involving charges of illegal possession of fire arms. On 22 August 1989, the Fourth Chamber of the Superior Court declared the charges null and void; it found that the re-indictment of the author in January 1987 violated article 160 of the Code of Criminal Procedure, according to which no one shall be tried or convicted more than once for the Same offence.

THE COMPLAINT

2.         It is claimed that Juan Teran Jijón is a victim of violations by Ecuador of article 7 of the Covenant, because he was subjected to torture and ill-treatment following his arrest, partly in order to extract a confession from him and in order to force him to sign blank sheets of paper, about whose subsequent use he was kept in the dark: the author adds that he was denied access to counsel. It is further claimed that he was a victim of a violation of article 9, paragraph 1, because he was subjected to arbitrary arrest and detention, since he allegedly was not involved in the bank robbery: in this context, it is submitted that the police report incriminating him was manipulated by the Ministry responsible for the police (Ministerio de Gobierno y Policia). The author further alleges a violation of article 9, paragraph 3, because he was not brought promptly before a judge. The fact of having been re-indicted for the same facts and the same offence is said to amount to a violation of the principle ne bis in idem.

THE STATE PARTY'S INFORMATION AND OBSERVATIONS:

3.1       The State party contends that on 7 March 1986 Juan Teran Jijón, together with a group of armed men belonging to the terrorist movement "Alfaro vive", robbed the bank of Pichincha and the Caja de Credito Agricola of Sangolqui.

3.2       According to the police report, eight persons were involved in the hold-up of the two banks, escaping in a pick-up truck, of which the author was said to be the driver. A police car which followed them was able to arrest three of them after a shoot-out. The remaining five were apprehended later. The report does not specify when or where Mr. Teran Jijón was apprehended.

3.3       The State party denies that Mr. Teran Jijón was at any time subjected to ill-treatment in detention. It further contends that the judicial proceedings against the author were at all times conducted in conformity with the procedures established under Ecuadorian law.

3.4       With respect to the second indictment against Mr. Teran Jijón, the State party explains that it was not based on the charge of bank robbery, but rather on the charge of illegal possession of fire arms.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE:

4.1       During its 39th session, the Committee considered the admissibility of the communication and noted that the State party, while addressing issues of merit, had not shown whether any investigation with regard to the allegations of torture had taken place or was in progress, nor contended that effective domestic remedies remained open to the author. In the circumstances, the Committee concluded that the requirements of article 5, paragraph 2(b), of the Optional Protocol had been met.

4.2       The Committee further noted that the facts as submitted appeared to raise issues under provisions of the Covenant which had not specifically been invoked by the authors. It reiterated that whereas authors must invoke the substantive rights contained in the Covenant, they are not required, for purposes of the Optional Protocol, necessarily to do so by reference to specific articles of the Covenant. So as to assist the State party in preparing its submission under article 4, paragraph 2, of the Optional Protocol, the Committee suggested that the State party should address the allegations (a)under article 10 of the Covenant, that Juan Teran Jijón was subjected to ill-treatment during detention, (b) under article 14, paragraph 3 (b), that he was denied access to a lawyer after his arrest, (c) under article 14, paragraph 3(g), that he was forced to sign blanco confessions, and (d)that his indictment in January 1987 corresponded to the same offence for which he had already been tried and convicted, which appeared to raise issues under article 14, paragraph 7.

4.3       On 4 July 1990, therefore, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7, 9, 10 and 14 of the Covenant.

4.4       The State party did not reply to the Committee's request for information and observations, in spite of a reminder addressed to it on 29 July 1991.

5.1       The Committee has considered the communication in the light of all the information made available by the parties, as required under article 5, paragraph 1, of the Optional Protocol. Concerning the substance of the authors' allegations, the Committee notes with concern that the State party has confined itself to statements of a general nature, by categorically denying that the author was at any time subjected to ill-treatment, and by asserting that the proceedings complied with the requirements of Ecuadorian law. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith all the allegations of violations of the Covenant made against it and its judicial authorities, and to furnish the Committee with sufficient detail about the measures, if any, taken to remedy the situation. The dismissal of the allegations in general terms, as in the present case, does not meet the requirements of article 4, paragraph 2. In the circumstances, due weight must be given to the authors' allegations, to the extent that they have been substantiated.

5.2       Mr. Teran has claimed that he was subjected to torture and ill-treatment during detention, which included remaining shackled and blind-folded for five days; the State party dismisses this claim. The Committee notes that Mr . Teran has submitted corroborative evidence in support of his allegation: the medical report, prepared on 13 March 1986, i. e. shortly after his arrest, records haematomas and numerous skin lesions ("escoriaciones") all over his body. Moreover, the author has submitted that he was forced to sign more than ten blank sheets of paper. In the Committee's opinion, this evidence is sufficiently compelling to justify the conclusion that he was subjected to treatment prohibited under article 7 of the Covenant, and that he was not treated with respect for the inherent dignity of his person, in violation of article 10, paragraph 1.

5.3       In respect of the authors' claim of a violation of article 9, paragraph 1, the Committee lacks sufficient evidence to the effect that Mr. Teran's arrest was arbitrary and not based on grounds established by law. On the other hand, the Committee notes that Mr. Teran was kept in detention on the basis of a second indictment, subsequently quashed, from 9 March 1987 until 18 March 1988. In the circumstances, the Committee finds that this continuation of his detention for one year following the release order of 9 March 1987 constituted illegal detention within the meaning of article 9, paragraph 1, of the Covenant. Moreover, Mr. Teran has claimed and the State party has not denied that he was kept incommunicado for five days without being brought before a judge and without having access to counsel. The Committee considers that this entails a violation of article 9, paragraph 3.

5.4       With regard to Mr. Teran's contention that the State party violated article 14, paragraph 7, of the Covenant, because he was re-indicted for the same events that had been the basis of his first trial and conviction, the Committee notes that article 14, paragraph 7, proscribes re-trial or punishment for an offence for which the person has already been convicted or acquitted. In the instant case, while the second indictment concerned a specific element of the same matter examined in the initial trial, Mr. Terán was not tried or convicted a second time, since the Superior Court quashed the indictment, thus vindicating the principle of ne bis in idem. Accordingly, the Committee finds that there has been no violation of article 14, paragraph 7, of the Covenant.

6.         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 articles 7, 9, paragraphs 1 and 3 and 10, paragraph 1, of the Covenant.

7.         The Committee is of the view that Juan Fernando Teran Jijón is entitled to a remedy, including appropriate compensation. The State party is under an obligation to investigate the use to which the more than ten sheets of paper signed by Mr. Teran Jijón under duress were put, to see to it that these documents are returned to him or destroyed, and to ensure that similar violations do not occur in the future.

8.         The Committee would appreciate receiving information, within ninety days, from the State party in respect of measures adopted pursuant to the Committee's Views.