argue that the State did not conduct an effective investigation of Mr. Palma’s death, and
therefore did not guarantee his right to life.
22.
The petitioners state that all of these events were not investigated
adequately, and that this generated unnecessary suffering for his family members over a
period of more than three years. The family members had gone before judicial and military
authorities to ask for information regarding the whereabouts of Mr. Palma, or “that they at
least turn over the body so that he could be given a Christian burial.” They state that since
the disappearance and death of Mr. Palma was not investigated until the truth was
uncovered by an event that was not the result of any activity by the State, a violation of Mr.
Palma’s family’s right to mental and moral integrity has occurred.5
23.
The petitioners argue that the State violated Articles 7(6) and 25(1) of the
American Convention due to the fact that, once a writ of habeas corpus was presented, the
state agencies should have been activated to determine whether Mr. Palma could be found
in penitentiary, police, and military establishments. Instead, the family received a negative
response from the army in which they told him that Mr. Palma was not in a particular
military establishment.
24.
In terms of the right to a fair trial, the petitioners point out that more than
five years passed between the time that Mr. Palma’s dead body was discovered (May 26,
1997) and the time when the guilty verdict was issued by the Supreme Court of Justice
(June 26, 2002), and that this is not a reasonable period of time. The petitioners state that
the matter was not a complex one in that Mr. Palma’s body appeared only a few days after
his disappearance. They also argue that his murderers were former members of the FAE and
were seen by their colleagues who could have identified them. They state that the conduct
of Mr. Palma’s family, and especially that of his mother Perfelita Mendoza Aguayo, was that
of consistently promoting investigation, while the behavior of the judicial authorities was
negligently deficient since they did not conduct an effective investigation. As a result, they
maintain that the State violated Article 8(1) of the American Convention.
25.
In terms of the requirement established by Article 46(1) of the Convention
that all domestic remedies be exhausted, the petitioners indicate that they exhausted
domestic remedies in this case. They presented a writ of habeas corpus, which was
exhausted in the courts of first instance. The petitioners indicate that since habeas corpus
was the appropriate recourse that had to be exhausted and since there is no Ecuadorian
legislation for any other effective recourse for locating a detained or disappeared person,
domestic remedies were therefore exhausted.
26.
In sum, the petitioners maintain that the State has violated Article 4 in
relationship to Article 1(1) of the American Convention, to the detriment of Marco
Bienvenido Palma Mendoza, and Articles 5, 7(6), 8(1), and 25(1) in relationship to Article
1(1) of that instrument to the detriment of Mr. Palma’s family members. They also maintain
that all of the available remedies for internal jurisdiction have been exhausted and that,
therefore, the case should be declared admissible. The petitioners are also requesting that
the IACHR order the Ecuadorian State to pay appropriate compensation to Mr. Palma’s
family members and that it order the immediate implementation of an operations manual for
investigating murders that would include protocols for autopsies and crime scene
investigation, in conformance with the United Nations Manual for the Effective Prevention
and Investigation of Extrajudicial, Arbitrary, and Summary Executions.
5
Petitioners refer to the Inter-American Court of Human Rights decision in The Massacre of Mapiripán Vs.
Colombia. Merits ,Reparations, and Costs. Judgment of September 15, 2005. Ser. C. No. 134. para. 284.