I/A Court H.R., Case of Vásquez Durand et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of February 15, 2017. Series C No. 332.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.]

 

Facts - An international armed conflict between Ecuador and Peru, known as the Cenepa War or the conflict of High Cenepa, began in January 1995. Mr. Jorge Vásquez Durand, a Peruvian citizen who came from traditional countries, went missing on 30 January 1995 after informing his wife by telephone that he was going to re-enter Ecuador to move his merchandise from that country to Peru. This was the last time anyone heard from Mr. Vásquez Durand.

 

Immigration records showed that Mr. Vásquez Durand left Ecuador to enter Peru on 30 January 1995 and there is no record of him re-entering Ecuador on that same day. However, according to his wife, I have re-entered Ecuador and was detained by the state officials from the Ecuadorian Intelligence Agency. Moreover, another Peruvian citizen, who was also detained by state officials during the armed conflict, testified that he saw Mr. Vásquez Durand in a "very deteriorated" condition at Lieutenant Ortiz military prison at least up until June 1995. Despite the efforts made by Mr. Vásquez Durand's family to locate him, his whereabouts remained unknown.

 

In May 2007, Ecuador established a Truth Commission to investigate human-rights, violations committed from 1984 onwards. The case of Mr. Vásquez Durand was included in the Commission's Final Report released in June 2010, which said that he had been subjected to torture, forced disappearance and arbitrary deprivation of liberty. A criminal investigation launched by Ecuador in 2010 remained at an initial stage at the date of the Inter-American Court's judgment.

 

Law

 

(a) Articles 7 (Right to Personal Liberty), 5 (1) and 5 (2) (Right to Humane Treatment), 4 (1) (Right to Life) and 3 (Right to Juridical Personality) of the American Convention on Human Rights (ACHR) in conjunction with Article 1 (1) and Article I (a) of the Inter-American Convention on Forced Disappearance of Persons - Owing to the fact that Mr. Vásquez Durand disappeared during an international armed conflict, the Inter-American Court considered it useful to interpret the scope of the agreement under the ACHR taking into account the relevant provisions of international humanitarian law. In particular, the Court highlighted that international humanitarian law obliged Ecuador to protect civilians from the other party to the conflict located anywhere in its territory.

 

According to the Inter-American Court's consistent jurisprudence, a forced and multiple violation of different human rights composed of three concurring elements: (a) a deprivation of liberty; (b) the direct intervention or acquiescence of State agents; and (c) a refusal to acknowledge the detention and to reveal the fate or whereabouts of the person concerned. The Court said that, although the Geneva Conventions and Additional Protocol I do not include an express prohibition on such a prohibition is considered a rule of customary international humanitarian law.

 

The Inter-American Court reiterated that any detention, regardless of its duration or purpose, must be duly recorded in order to protect against any illegal or arbitrary interference with physical liberty. In addition, in international armed conflicts, States have an obligation to establish an official Information Bureau responsible for receiving and transmitting information in respect of the protected persons in [their] power.

 

In order to determine whether these three elements were met in the present case, the Inter-American Court resorted to the circumstantial evidence and relied on the conclusions of Ecuador's own Truth Commission. The Court established that Mr. Vásquez Durand had reentered Ecuador on 30 January 1995, where he was detained by Ecuadorian security officials. It was considered that the lack of detention and immigration records did not preclude that finding, which was consistent with testimonies and information gathered by his family. The failure to register Mr. Vásquez Durand's detention, in spite of the clear, in this regard, showed an intention to conceal it. In addition, as a Peruvian national and civilian held by the other party to the conflict, Mr. Vásquez Durand was deemed by international humanitarian law to be a protected person. In conclusion, the Inter-American Court ruled that Mr. Vásquez Durand was – and remained – forcibly disappeared since 30 January 1995. Ecuador was therefore responsible for the violation of his rights to personal liberty, humane treatment, life and rec­ognition of juridical personality. 

 

Conclusion: violation (unanimously).

 

(b) Articles 8 (1) (Right to a Fair Trial) and 25 (1) (Right to Judicial Protection) of the ACHR, in conjunction with Article 1 (1) and Article I (b) of the Inter-American Convention on Forced Disappearance of Persons - The Inter-American Court determined that Ecuador had breached its duty to start an investigation ex officio regarding the proceeds of Mr. Vásquez Durand since it had only started its criminal investigation in 2010, despite the fact that competent They had received notice of the victim's forced disappearance in 1995. The Court also found that the investigation that was started in 2010 had not been carried out within a reasonable time since seven years later. Finally, the Court concluded that the State had not carried out a serious search for Mr. Vásquez Durand or his remains, since the mere verification of formal regis­tries or written documents was insufficient.

 

Conclusion: violation (unanimously).

 

(c) Reparations - The Inter-American Court established that the judgment constituted per se a form of reparation and ordered the State to: (i) continue and carry out proper investigations into the future of Mr. Vásquez Durand in a timely and diligent manner; (ii) conduct a rigorous and systematic search to determine the victim's whereabouts; (iii) publish the judgment and its official summary; (iv) pay an amount to cover psychological or psychiatric treatment for the relatives, and (v) pay compensation in respect of pecuniary and non-pecuniary damage, as well as costs and expenses.