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III.

THE PARTIES’ POSITIONS

A.

The petitioners’ position

7.
The petitioners note that Gonzalo Orlando Cortéz Espinoza served for 15 years as a
member of the Ecuadorian Armed Forces until he reached the rank of Second Sergeant, working as
a technical specialist on electronic equipment for communication and terrestrial navigation for the
Air Force, with unblemished conduct. They indicate that for personal reasons, on August 31, 1993,
the alleged victim filed a voluntary request to leave the Air Force; in response, he was discharged
on February 28, 1994.
8.
They allege that on March 19, 1997, the Military Criminal Judge for the First Aerial
Zone instituted criminal proceedings and ordered that an investigation be opened against the
alleged victim on accusations of having stolen electronic equipment that was property of the Air
Force, committed in January 1997, and ordered his provisional detention. In this respect, the
petitioners allege that said order was unfounded and illegal in the Ecuadorian legal system, for a
military judge does not have jurisdiction to order the detention of a civilian, violating the right to a
judge with jurisdiction.
9.
They indicate that the alleged victim was detained, without the constitutionallyrequired arrest warrant, on July 11, 1997, by agents of the Air Force Intelligence Service, and was
taken to the air base. They indicate that the arrest warrant was issued five days later, on July 16,
1997, by the Military Judge of the First Aerial Zone, who ordered his detention to carry out certain
investigative steps, and then his transfer to the Pichincha Provisional Detention Center in view of his
status as a civilian, which never happened.
10.
They argue that the alleged victim was brought before the judge on July 30, 1997, 19
days after his detention, when they received his statement; accordingly, there was a violation of
Article 7(5) of the Convention. In addition, they argue that the alleged victim was held
incommunicado for 15 days. In this respect, they allege that Gonzalo Orlando Cortéz Espinoza should
have been brought before the judge immediately after his detention. They indicate that in
Ecuadorian legislation, detention without judicial order is illegal, and that detainees must give their
statement to a judge within 24 hours of their detention, which may be extended for up to 24 hours
more. They indicate that the alleged victim was detained at the Military District of the “Mariscal
Sucre” Air Base for five months and one week, and that he was released on December 18, 1997.
11.
The petitioners allege that during his detention the alleged victim was subjected to
cruel, inhuman, and degrading treatment. In this respect, they allege that in addition to the
incommunicado detention, at night the guards would kick the door of the alleged victim’s cell, and
that he was subjected to verbal attacks to instill fear in him. They also argue that the alleged victim
was forced to pay for his food, and that it was served to him having already been chewed and spit
out.
12.
In response to the State’s argument that a writ of habeas corpus should have been
filed (see infra III B.), the petitioners answer that given that the alleged victim was held
incommunicado, he could not file such a writ, either personally or by means of another person, since
his family members or attorney were not aware of what was happening; and that had he filed it
subsequently it would have lacked the characteristics of timeliness and effectiveness.
13.
In response to the State’s arguments that it was not apparent that the person being
tried was a civilian, and that he was the one who asked to continue under the military jurisdiction,
so as to safeguard his personal integrity (see infra III B.), the petitioners answer that his status as a

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