the Criminal Tribunal for Superior Officers of the National Police issued a judgment
at first instance in which it sentenced Carlos Eduardo Rivera Enríquez to eight years
of imprisonment. The sentence was twice appealed and confirmed at the third
instance on February 25, 2003, by the National Court Police Justice. 20 By means of
an interlocutory order dated June 11, 2003, the Second National Police District Court
ordered the location and capture of Carlos Eduardo Rivera Enríquez so that he might
be made to serve the prison sentence imposed,21 which, as of the adoption of the
instant report, had not occurred.
31.
Furthermore, based on a complaint, the inspection of the corpse
and the autopsy conducted on it, and a report submitted by the Chief of Judicial Police
of Guayas, a criminal case was brought against José Francisco Bone Franco and Willer
Keller Lara Valencia, on which a decision is pending before the Third Criminal Court
of Guayas. In sum, the facts that comprise the subject matter of the petition have
been presented both before the police courts where an agent of the National Police,
who remains at large, was found responsible, and before the ordinary courts where
a decision on the responsibility of the accused is pending.
32.
The state argues that the petitioners’ complaint does not meet the
requirement of prior exhaustion of domestic remedies provided at Article 46(1) of the
American Convention because at the time that the petition was lodged a final decision
was still pending in the proceeding before the police courts. For their part, the
petitioners hold that the exceptions to the rule of prior exhaustion of domestic
remedies are applicable due to the unwarranted delay in trying the case and because
the only agent of the state actually convicted for the death of Joffre Antonio Aroca
Palma is not serving his sentence.
33.
The Commission has consistently held that special jurisdictions, like
those of the military or the police, do not constitute an appropriate forum to
investigate, judge and punish violations of rights recognized in the American
Convention allegedly committed by members of the public security
forces.22 Consequently, the prosecution in the police jurisdiction of members of the
National Police involved in acts connected with the death of a civilian does not
constitutes a suitable remedy within the meaning of Article 46(1)(a) of the American
Convention.
34.
The Commission further notes that the proceeding instituted in the
ordinary jurisdiction against two other agents of the state thought to be implicated
in the events is still pending a decision by the Third Criminal Court of Guayas more
than eight years after the facts occurred. In the case of publicly actionable offenses
that require an ex officio investigation on the part of the criminal authorities, the
State has an obligation to conduct and complete said investigation. As regards a civil
suit for damages suggested as suitable by the petitioners, the Commission notes
that, on principle, it does not serve to clarify criminal responsibility or to remedy what
the petitioners allege to be a an unwarranted delay that has resulted in a denial of
justice.
35.
In view of the foregoing, as regards the proceeding instituted in the
police jurisdiction, the situation charged by the petitioners is consistent with the
exception to the rule of prior exhaustion of domestic remedies provided at Article
20 Judgment of the National Court Police Justice, February 25, 2003. Annex to the petitioners’ brief
received at the IACHR on June 18, 2003.
21 Ruling of the Second National Police District Court, Criminal Case No. 011-2001, June 11,
2003. Annex to the petitioners’ brief received at the IACHR on June 28, 2003.
22 IACHR, Report on Admissibility No. 11/02, Joaquín Hernández Alvarado et al., Ecuador, February 27,
2002, para. 18.
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