3
and 8(3); 10; 11(1), 11(2) and 11(3); 21(1), 21(2) and 21(3); and 25(1), 25(2)(a),
25(2)(b) and 25(2)(c) of the American Convention.
7.
The Commission opened the case on May 7, 1999, forwarded the pertinent
sections of the complaint to the State, and requested its comments, pursuant to the
Rules of Procedure of the Commission that were in force at the time. It specifically
asked the State, in accordance with Article 37 of the Rules of Procedure of the
Commission, with the aim of processing said communication as appropriate, to
provide –together with information on the facts- any relevant factors to assess
whether in that case the domestic remedies had or had not been exhausted.
8.
On August 12, 1999, the State answered the request for information, stating
that domestic remedies had not been exhausted, as the criminal proceeding was still
pending, and it asserted that there were effective domestic remedies, such as an
appeal to the court of cassation, which the petitioner could file against the judgment
issued by the respective criminal court, and a motion for review, which could be
requested at any moment once a writ of execution of the judgment had been issued,
if he were found guilty in that judgment. The State pointed out that while there
were irregularities in the processing of the first instance of the criminal trial, they
had been corrected, as the petitioner was able to resort to available remedies to
recuse the judges. On September 27, 1999 the State submitted additional
information to the Commission regarding the reasons for Mr. Tibi’s detention and the
evidence that it was based on, regarding non-liability of the police in this matter,
and regarding non-exhaustion of domestic remedies, based on the fact that there
was still no definitive court ruling, that is, a non-appeable judgment. On October 8,
1999, the Commission forwarded the information supplied by the State to the
petitioner, and requested his comments on it.
9.
On December 9, 1999 the petitioner, in response to a query by the
Commission, argued that he had no available remedies to exhaust. He added that
he had already been found innocent and that, furthermore, only the inter-American
system could offer an “impartial and apolitical” examination of his situation. Finally,
he added that, despite having appointed an attorney in Ecuador to seek the return of
his property, it had not been returned to him.
10.
On October 5, 2000, during its 108th Regular Session, the Commission
adopted Report No. 90/00, in which it found the case admissible under No. 12.124,
and it decided to consider the merits. Specifically, in said Report the Commission
pointed out that:
[t]he argument of the State regarding the existence of instances yet to be exhausted
refers to a drug trafficking case in which the proceeding against the petitioner was
provisionally dismissed on September 3, 1997. However, this case has been under
consideration since 1995, for which reason the Commission concluded that there [wa]s
unjustified delay, applying the exception set forth in Article 46(2)(c) [of the
Convention]. The Commission noted that the State does not specify which instances
have already been exhausted, nor in which instance the case is currently ongoing.
11.
Said report mentioned, regarding return of the belongings “seized” when the
petitioner was detained, that the State had not specified the procedures that he
should follow to obtain their return, but rather it asserted that he had never
requested their return after his release.
The Commission mentioned that on
September 23 or 29, 1998, in the judgment issued by the Second Criminal Judge of
the Guayas, Alternate Judge for the Eighteenth Criminal Court of the Guayas, an
order was issued for the return of Mr. Tibi’s belongings, “prior confirmation by the
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