I/A Court H.R., Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 21, 2007. Series C No. 170.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2008-1-e.pdf

 

Headnotes:

 

Any arrest carried out without a written judicial order, except in flagrante delicto, may be unlawful.

 

A detained person must understand that he or she is being detained, and the agent who carries out the arrest must inform him or her in simple language the legal grounds and facts of the arrest.

 

A detained person's statement before a prosecutor cannot be considered to comply with the right to be brought before "a judge or other officer authorised by law to exercise judicial power" embodied in Article 7.5 ACHR.

 

To prevent the arbitrary deprivation or restriction of the right to liberty, the measures used must be:

 

a. for a purpose compatible with the Convention; 

b. appropriate to achieve the purpose sought;

c. absolutely essential to achieve the purpose and that, among all possible measures, there is no less burdensome one in relation to the right involved, that would be as suitable to achieve the proposed objective; and

d. strictly proportionate.

 

In order to restrict the right to personal liberty using measures such as preventive custody, there must be sufficient evidence to allow a reasonable supposition that the detained person has taken part in the criminal offence under investigation.

 

Judges should assess periodically that the reasons and purposes that justified the deprivation of liberty subsist, whether a precautionary measure is still absolutely necessary in order to achieve these purposes, and whether it is proportionate. At any time that the precautionary measure does not meet any of these conditions, the release of those detained must be ordered. Likewise, when a request is received for the release of those detained, the judge must explain the grounds, even if very briefly, on which he considers that preventive detention should be maintained.

 

Control of deprivation of liberty must be of a judicial nature. Although a mayor may be granted competence by law, he or she is not a judicial authority.

 

The principle of presumption of innocence constitutes a cornerstone of the right to a fair trial. The State has an obligation not to restrict the liberty of a detained person beyond the limits strictly necessary to ensure that he will not prevent the proceedings from being conducted or evade the justice system.

 

It is only admissible to seize and deposit property when there is clear evidence of its connection to the offence, and provided that it is necessary to guarantee the investigation and the payment of the applicable pecuniary responsibilities, or to avoid the loss or deterioration of the evidence. Also, these measures must be adopted and supervised by judicial officials, taking into account that, if the reasons that justified the precautionary measure cease to exist, the judge must assess the pertinence of maintaining the restriction.

 

While the right to property is not an absolute right, the deprivation of the property must be for reasons of public utility or social interest, subject to payment of just compensation, and only in the cases and in the ways established by law.

 

Summary:

 

I. Mr. Chaparro, a Chilean national, owned a factory that manufactured ice chests for transporting and exporting different products and Mr. Lapo, an Ecuadorian national, was the manager of the factory. On 14 November 1997, Ecuadorian anti-narcotics police officials seized a shipment of fish belonging to another company and discovered packets of heroine and cocaine hydrochloride in the thermal insulated boxes, which Ecuador believed had been fabricated at Mr. Chaparro's factory. As a result, Mr. Chaparro was deemed to belong to an international drug trafficking organisation, his factory was searched and seized, and he and Mr. Lapo were detained. At the time of Mr. Chaparro's detention, the State authorities did not advise him of the respective reasons or justification for his arrest, or of his right to request consular assistance from the country of which he was a national. The detention of Mr. Lapo was not made in flagrante delicto and it was not preceded by a written order by a judge; moreover, he, also, was not advised of the reasons and justification for his detention. Mr. Chaparro did not have a lawyer present when he made his pre-trial statement and Mr. Lapo's public defender was unsatisfactory. Furthermore, the detention of the alleged victims exceeded the legal maximum allowed by domestic law and they were not taken before a judge promptly. They remained in preventive custody for over a year, despite the lack of any substantial evidence linking them to illicit acts. Finally, the State did not return the seized property in a timely fashion or in adequate conditions. 

 

On 23 June 2006 the Inter-American Commission on Human Rights (hereinafter "the Commission") lodged before the Court an application against the Republic of Ecuador to establish the international responsibility of the State for the violation, to the detriment of Mr Chaparro and Mr. Lapo, of the rights recognised in Article 2 ACHR (Domestic Legal Effects), Article 5 ACHR (Right to Humane Treatment), Article 7 ACHR (Right to Personal Liberty), Article 8 ACHR (Right to a Fair Trial), Article 21 ACHR (Right to Property) and Article 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 ACHR (Obligation to Respect Rights). During the public hearing, the State acquiesced to the violations of Articles 2, 5, 8 and 25 ACHR. The Court's judgment primarily focused on the violations of Articles 7 and 21 ACHR.

 

II. In the case of Mr. Lapo, the Court found that his arrest was illegal, as it did not comply with the requirements established in Ecuador's domestic laws, in contravention of Article 7.2 ACHR. In the case of Mr. Chaparro, the Court established that the State did not inform him of the "motives" or "reasons" for his arrest, rendering the arrest unlawful and contrary to Articles 7.2 and 7.4 ACHR. The Court also held that their preventive custody was arbitrary and contrary to Article 7.3 ACHR.

 

The Court declared that the failure to return property belonging to the company had an impact on its value and productivity, which, in turn, prejudiced Mr. Chaparro's patrimony. The Court considered this prejudice as an arbitrary interference in the "enjoyment" of the property under the provisions of Article 21.1 ACHR. Further, the Court found that the State is responsible for compensating Mr Chaparro for the damage of his property while in its custody.

 

The Court ordered the State to compensate Mr. Chaparro for the financial losses that the depreciation in the value of the company caused him, for loss of earning from the time elapsed from the time of the victims' arrest until the time they recovered their liberty, as well as for non-pecuniary damages. Additionally, the State was ordered to inform public and private institutions and the population in general that the victims were found innocent of all the charges of which they were accused.