11
d)
on January 14, 1998 the High Court of Guayaquil upheld the
provisional discontinuance of the proceeding and quashing of the indictment,
issued by the lower court on September 3, 1997, and ordered the release of
Mr. Tibi, who was released on January 21, 1998. If at the time of Mr. Tibi’s
release there had been criminal proceedings pending, it is unlikely that he
would have been allowed to leave the country and return to France;
e)
on July 15, 1998 the Commission received the complaint, which was
forwarded to the State on May 7, 1999. On October 5, 2000 the Commission
ruled on admissibility. “The State d[id] not explain which ‘criminal
proceedings’ were allegedly pending against Mr. Tibi on July 15, 1998;”
f)
the two courts that heard the case dismissed the charges against
Daniel Tibi, because his conduct had not been linked to them or to the case.
Therefore, Mr. Tibi and the other persons covered by the dismissal were
excluded from the following stage of the criminal proceeding (full trial). The
High Court of Guayaquil should have issued a “definitive” order quashing the
indictment, instead of upholding the “provisional” discontinuance;
g)
Mr. Tibi filed two judicial amparo remedies to challenge the lawfulness
of the detention: the first one, on July 1, 1996, which was rejected, and the
second one, on October 2, 1997, but the judicial authorities never replied to
this request. The amparo remedies were ineffective, as they did not lead to
his release, nor did they lead the Ecuadorian authorities to conduct an
investigation of the complaint regarding human and constitutional rights;
h)
the cassation remedy and the motion for review mentioned by the
State in its pleadings before the Commission are only effective in regards to a
non-appealable judgment. In the instant case, the charges against Mr. Tibi
were dismissed;
i)
in the proceeding before the Commission, the State did not refer to
the constitutional habeas corpus remedy or to the need to file an action for
damages or motion of appeal during the admissibility stage. Therefore, it is
not in order for it to do so before the Court;
j)
in regards to Daniel Tibi’s property that was seized when he was
detained, the State did not specify what procedures should have been
followed for it to be returned. The State itself argues that Mr. Tibi never
requested this after his release. Once the dismissal of the accusation was
upheld, an order was issued to return the property and “to date [September
15, 2003] the issue has not been resolved, [...which entails] an unjustified
delay;” and
k)
the State has submitted contradictory pleadings regarding the rule of
exhaustion of domestic remedies. In its pleadings before the Commission and
the Court, it asserted on the one hand that the decision on admissibility was
prior to completion of the criminal proceeding, and on the other hand, in its
reply to the application before the Court, it argued that the criminal
proceeding continued until the provisional dismissal was upheld. Pursuant to
the jurisprudence of the Court, when a party has adopted an attitude that is
beneficial to that party or detrimental to the opposite party, it cannot
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