Suarez Rosero Case, Provisional Measures in the Matter of Ecuador, Order of the President of April 12, 1996 Inter-Am. Ct. H.R.

HAVING SEEN:

1. The petition of December 22, 1995 in which the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the Inter-American Commission") submitted to the Inter-American Court of Human Rights (hereinafter "the Court" or "the Inter-American Court") the case of Suárez-Rosero against the Government of the Republic of Ecuador (hereinafter "the Government" or "Ecuador"), of which petition the Government was duly and officially apprised on January 16, 1996.

2. The note from the President of the Inter-American Court, in which he granted the Government "a two-month extension to file preliminary objections and a two-month extension to respond to the petition," as requested, which deadlines would expire on April 16 and June 16, 1996 respectively.

3. The Commission's request of March 15, 1996 for provisional measures pursuant to the provisions of Article 63(2) of the American Convention on Human rights (hereinafter "the Convention" or "the American Convention") and Article 24(1) of the Rules of Procedure of the Court (hereinafter "the Rules of Procedure"), in which it requested the Inter-American Court to "take the necessary measures to ensure that Mr. Iván Suárez-Rosero is immediately released pending continuation of the procedures." The Commission adduced the following arguments in support of its request:

a.Rafael Iván Suárez-Rosero has been detained since June 23, 1992; he has not been tried and has been held in preventive detention for approximately three years and nine months.

b.Mr. Suárez-Rosero is imprisoned in the Quito Social Rehabilitation Center Number 1 (former García Moreno Prison). During the almost four years that have elapsed, this defendant, like most of the others similarly detained, has not been housed separately from condemned prisoners.

c.In the committal for trial order, on July 10, 1995, issued in criminal case No. 93-92, the then President of the Quito Superior Court decided in regard to the detention of Mr. Suárez and two others accused of having covered up the crime, that "they did not fall under the requirements of Article 177 of the Code [of Criminal Procedure, which authorizes preventive detention of persons accused of crimes] cited" and that they should be released (see annex 20 of the Commission's request of December 22, 1995). However, since the compulsory conference for these proceedings is still pending, the release order has not been executed.

d.Mr. Suárez-Rosero is accused of being an accessory, which carries a maximum sentence of two years (see Article 48 of the Penal Code, Annex 1). It is therefore evident that he has been held in preventive detention for a longer period than he would have served had he been tried and convicted.

e.In view of the Commission's decisions set out in Report 11/95, on January 16, 1996 another petition for habeas corpus was filed by Rafael Iván Suárez-Rosero, requesting his immediate release. This petition was denied on January 23, 1996 (see decision of January 23, 1996 by the Office of the Mayor of the Metropolitan District of San Francisco de Quito, Annex 2). The Court with jurisdiction to hear this case in regard to the criminal proceedings against Rafael Iván Suárez-Rosero ruled that he be kept in preventive detention (see letter of January 31, 1996 from the Bench of the First Chamber of the Superior Court of Justice of Quito, Annex 3).

4. The decision of January 23, 1996 by the Office of the Mayor of the Metropolitan District of San Francisco de Quito, in which it decided to "[R]eject [a further] application for habeas corpus filed by Mr. RAFAEL IVAN SUARES- (sic) ROSERO, as unreceivable inasmuch as it requires application of the legal process provided for in Art. 121 of the Law on Narcotic Drugs and Psychotropic Substances."

CONSIDERING:

1. That Ecuador has been a State Party to the American Convention since December 28, 1977 and that it accepted the compulsory jurisdiction of the Court on July 24, 1984.

2. That Article 63(2) of the Convention provides that the Court shall adopt such provisional measures as it deems pertinent in matters it has under its consideration in cases "of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons."

3. That in relation to this matter, Article 24(1) of the Court's Rules of Procedure currently in force provides that "[a]t any stage of the proceedings involving cases of extreme gravity and urgency and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its own motion, order whatever provisional measures it deems appropriate, pursuant to Article 63(2) of the Convention."

4. That in the instant case, which has been submitted to this Tribunal, the Inter-American Commission requests that the Court seek from Ecuador such provisional measures as are "necessary to ensure that Mr. Iván Suárez-Rosero is immediately released pending continuation of the procedures."

5. That the situation of Mr. Suárez-Rosero, as stated by the Commission, may be categorized as extremely grave, inasmuch as it may cause him irreparable damage since, as the Commission stated, "he has been held in preventive detention for a longer period than he would have served had he been tried and convicted."

6. That, nonetheless, the provisional measures requested imply anticipation of certain effects that would be produced by the judgement on the merits which this Court may deliver, since in its request the Commission considers that the imprisonment of the alleged victim violates the American Convention. These are precautionary measures described in legal writings as partially restitutive or anticipatory and which the court cannot prescribe without first hearing the adversary, in this case the Government of Ecuador, one requisite being a preliminary analysis of the situation that necessitates the order for provisional measures.

7. That by the terms of Article 24(4) of the Rules of Procedure, "[i]f the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt the necessary urgent measures and to act so as to permit any provisional measures subsequently ordered by the Court, in its next session, to have the requisite effect."

8. That in accordance with this precept, the President of the Court is authorized to order urgent measures only; it is therefore for the Court at its next session to decide on the appropriateness of the anticipatory provisional measures sought by the Commission, which can only be granted after the Government concerned has been heard.

NOW, THEREFORE:
THE PRESIDENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS,

pursuant to Article 63(2) of the American Convention on Human Rights and in exercise of the authority conferred on him by Article 24(4) of the Rules of Procedure of the Court, in prior consultation with the Permanent Commission of the Court, DECIDES:

1. To request that the Government of the Republic of Ecuador adopt forthwith such measures as are necessary to effectively ensure the physical and moral integrity of Mr. Rafael Iván Suárez-Rosero, so that any provisional measures that the Inter-American Court may take can have the requisite effect.

2. To request that the Government of the Republic of Ecuador submit a report to the President of the Court every thirty days from the date of this Order, on the measures taken pursuant to this Order, so as to bring the information to the attention of the Court.

3. To instruct the Secretariat of the Court to transmit the reports presented by the Government of the Republic of Ecuador to the Inter-American Commission Human Rights without delay; the Commission shall then submit its comments not later than fifteen days following receipt of the relevant information.

4. To submit this order for the Court's consideration and pertinent effects during its next regular session.

5. To summon the parties to a public hearing to be held at the seat of the Court on June 26, 1996, at 10:00 a.m., so that the Court may hear their views on the events and circumstances that led to the request for provisional measures and to this Order.

Héctor Fix-Zamudio
President
Manuel E. Ventura-Robles
Secretary
So ordered,
Héctor Fix-Zamudio
President
Manuel E. Ventura-Robles
Secretary

 

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