law. This requirement is intended to allow national authorities to consider an alleged violation of a protected
right and, when applicable, to give them the opportunity to correct it before it is heard and decided by an
international body. The Commission has reiterated that in situations where the evolution of the facts initially
presented at the domestic level signifies a change in compliance with the admissibility requirements, the
petition must be examined based on the current situation at the time the admissibility decision is rendered.
32.
As the Commission has noted, in order to examine compliance with the exhaustion of domestic
remedies requirement, it must determine the object of the claim and the appropriate remedy to be exhausted
according to the circumstances of the case, understood as that remedy which can resolve the alleged violation.
In fact, the Inter-American Court of Human Rights has held that it is only necessary to exhaust remedies that
are suitable for addressing the violations allegedly committed.4
33.
The Commission observes that the petitioner’s claim is related to the failure to protect a
government employee who exposes information that may provide evidence of serious irregularities in public
administration or acts of corruption (whistleblower) and who alleges to be the victim of retaliation as a result
of his denunciation.
34.
The information provided to the IACHR indicates that on March 19, 2002, Mr. Viteri filed a
petition for a constitutional remedy before the courts for the judicial review of administrative acts, alleging the
violation of his constitutional rights as a consequence of the strict arrests to which he was subjected, the order
removing him from his Naval Attaché post, and the denial of the opportunity to meet one of the requirements
for promotion within the Navy. He alleged that these acts, taken together, were intended to hold him back
because he had exposed corruption and to pressure him to back down from pursuing the respective
investigations. The petitioner affirmed that the claim was filed “to restore the rights that were violated,” and
to obtain “the immediate execution of all measures deemed necessary to remedy the harm,” as established in
Article 51 of the Constitutional Control Law in force at the time of the events. The Commission also takes
account of the writ of habeas corpus challenging his detention, which was filed and denied in December 2001.
35.
According to the information received, on April 2, 2002, Court No. 1 for the Review of
Administrative Acts ruled the action inadmissible on the grounds that this remedy could only be filed against a
single act or omission by a government authority and not against numerous cumulative administrative acts. On
August 28, 2002, the Constitutional Court handed down a judgment partially granting the petition for a
constitutional remedy and ordered “the strict arrests imposed against him to be set aside.” Nevertheless, the
Constitutional Court dismissed the amparo petition with respect to the petitioner’s removal from his post when
he learned of the alleged acts of corruption and with respect to his exclusion from the list of officers named to
take the course required to be eligible for a promotion. It is the petitioner’s opinion that this decision failed to
guarantee his right to denounce corruption without being subject to retaliation.
36.
With respect to these events, the State maintained that the petitioner should have exhausted
the available domestic remedies to enforce the judgment of the Constitutional Court and in particular the
awarding of compensation in his favor. Specifically, the State asserted that Mr. Viteri Ungaretti did not seek
non-pecuniary damages based on the Constitutional Court decision that was partially in his favor, and that he
could have filed a civil action for non-pecuniary damages before the Court for the Judicial Review of
Administrative Action, pursuant to Article 212 of the Statute of the Administrative Legal System of the
Executive Function. In addition, the State asserted that, in order to have the judgment enforced, the petitioner
should have exhausted “the noncompliance action” established by the 2008 Constitution of Ecuador, given that,
although the remedy was not available at the time the petition was filed, it could be exhausted now.
37.
Bearing in mind the principle of the effectiveness of laws (effet utile), the Inter-American Court
has established that not all remedies available in the State have to be exhausted in order for the rule to be
4
I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 63.