44
203. As can be observed from paragraph 198 of this judgment, the property
confiscated from Mr. Chaparro should have been returned when the reasons had
disappeared that made the material precautionary measures necessary. In the instant
case, even though a provisional stay of proceedings was issued in favor of Mr. Chaparro
on October 30, 2001, the property was only returned to him one year later, in October
2002.
204. The Court finds that this delay in complying with the order to return the property,
which was no longer affected by a precautionary measure, aggravated Mr. Chaparro’s
situation when he was attempting to remedy, to some extent, the impediment to the use
and enjoyment of his property, and this constitutes a violation of Article 21(1) of the
Convention, in relation to Article 1(1) thereof, to his detriment.
b)
Failure to return part of the property
205. The Commission and the representatives alleged that, when the factory was
returned, all the seized property was not handed back. The State expressed its “concern
about the alleged incompatibility between the inventory made at the time of the seizure
[… and] the inventory presented for its return.”
206. On November 18, 1997, three days after Mr. Chaparro’s arrest, the Guayas Fourth
Criminal Prosecutor and a Police Lieutenant made an inventory of the property in the
Plumavit factory. On November 20, 1997, another inventory was made, this time of the
documents found in the factory.137 The Court observes that, while these inventories were
being prepared, neither a representative of the company nor Mr. Chaparro’s defense
lawyers were represent. This prevented a satisfactory comparison being made of what
was seized and what was returned.
207. On October 10, 2002, an “Official Record of Delivery/Reception” was signed by the
Head Custodian CONSEP-Guayas and Mr. Chaparro. By means of this document, the
Plumavit Industrial Plant was handed back and it was recorded that Mr. Chaparro
“received the facilities with all the movable property in its actual condition and this is
described in forty-one (41) folios attached to the record.”138 This appendix, which
included the list of the respective movable property, was not submitted to the Court.
Nevertheless, this record of delivery-reception specifies that “one of the molding
machines is damaged and the interior of certain computer equipment, such as CPUs, is
incomplete, because they were received in this condition by the CONSEP Custodian from
the lessee.” The return of the factory was carried out in the presence of a notary public
who was present at Mr. Chaparro’s request in order to record the property that was
missing at that time. The corresponding record of the notarial procedure,139 stated that
“by visual inspection” it was verified that a series of movable assets “do not appear
physically in the factory.” Also, the notarial record indicated that “[t]here was no
accounting documentation for the seven previous years, or deeds and other documents
held in the safe (Caja de Fondos) of the Plumavit Company.”
208. The Court does not have the inventory that would allow it to make a comparison
between what CONSEP states it handed over and what Mr. Chaparro affirms he did not
receive. The State only provided one inventory of assets, but this inventory corresponds
137
Cf. report submitted to the Provincial Chief of the Guayas Anti-narcotics Office, supra note 115.
138
Cf. record of delivery/reception, supra note 121.
139
Cf. record of the notarial procedure, supra note 122.
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