IACHR refers case on Ecuador to the Inter-American Court

July 16, 2021

Washington, D.C. - On July 5, 2021, the Inter-American Commission on Human Rights (IACHR) filed the case of of Julio Rogelio Viteri Ungaretti and family regarding Ecuador before the Inter-American Court of Human Rights. The case concerns reprisals suffered by Julio Rogelio Viteri Ungaretti, a member of the Armed Forces and his family, as a result of a complaint he made in November 2001 about serious irregularities in the public administration and acts of corruption within the Armed Forces. The case deals with the structural relationship between freedom of expression and democracy, particularly freedom of expression as a means of denouncing acts of corruption.

In its Merits Report, the IACHR analyzed whether the complaints filed by Viteri, in his role as whistleblower, are protected by the right to freedom of expression, and whether the actions taken by the State were justified or entailed a disproportionate restriction on his right to freedom of expression. In addition, the IACHR evaluated whether the State violated Viteri's right to personal freedom by imposing a disciplinary sanction; whether it provided him with judicial guarantees and effective remedies to protect his rights; and, finally, the effect all of this had on his family members.

With respect to the sanctions suffered by Mr. Viteri for expressing and communicating a complaint, since it is a subsequent type of restriction that falls within the scope of Article 13(2) of the American Convention, the IACHR proceeded to evaluate the legitimacy of the same by means of the tripartite test applicable in these cases. The IACHR concluded that the disciplinary sanction did not meet the requirements of legality, legitimate aim, necessity, and strict proportionality in a democratic society.

In relation to the obligation to obtain prior authorization to speak to the press on a matter of high public interest, such as the reporting of corruption with possible effects on the use of public funds, the IACHR concluded that this restriction constitutes the type of censorship that the American Convention expressly prohibits, which affects the individual and collective dimension of the right to freedom of expression.

The Commission also concluded that the violations of the right to freedom of expression in the instant case were aggravated by the absence of adequate mechanisms for reporting acts of corruption in highly hierarchical organizations in Ecuador, such as the Armed Forces. The Commission also highlighted the role of whistleblowers and the duty to protect them from legal, administrative, or labor sanctions, provided they have acted in good faith. In this regard, it pointed out that, without a norm that guarantees their rights, labor reprisals and acts of harassment that resulted, as in the present case, in the exile of the whistleblower, generate a chilling effect on other whistleblowers who report acts of corruption.

On the other hand, the IACHR considered it accredited that Mr. Viteri was subjected to various rigorous arrest sanctions, the most relevant, due to its extension and effects, being one of 15 days, as well as two additional arrests of three and five days, for having made statements to the press without having requested prior authorization. This, even though the report of alleged acts of corruption had already become public knowledge. In this regard, the IACHR concluded that these detentions were unreasonable and disproportionate and, consequently, affected Viteri's personal liberty.

The Commission further observed that the protection measures granted by the State at the request of the IACHR failed to effectively protect Viteri and his family, given that the surveillance measures continued, which is why they obtained political asylum in the United Kingdom. On this basis, the IACHR concluded that the State is responsible for the violation of the right to movement and residence recognized in the American Convention to the detriment of Mr. Viteri and his family.

The IACHR also concluded that the State violated Viteri's right to judicial protection due to the ineffectiveness of the habeas corpus recourse filed by the victim, which was rejected in limine based on an interpretation of the Constitution according to which it did not apply to detentions based on disciplinary reasons within the Armed Forces.

Finally, the IACHR declared the State responsible for the violation of the right to psychological and moral integrity, to the detriment of Mr. Viteri and his family, for the suffering and affliction caused by the aforementioned violations.

Based on these findings, the Inter-American Commission concluded that the Ecuadorian State is responsible for the violation of the rights to humane treatment, personal liberty, freedom of expression, movement and residence, and judicial protection recognized in Articles 5(1), 7(1), 7(3), 13(1), 13(2), 22(1), and 25(1) of the American Convention, in relation to the obligations established in Articles 1(1) and 2 thereof, to the detriment of Julio Rogelio Viteri Ungaretti. It also held the State responsible for the violation of the rights to personal integrity, and movement and residence established in Articles 5(1) and 22(1) of the Convention, in relation to the obligations established in its Article 1(1), to the detriment of his wife, daughter, son and mother-in-law.

In its Merits Report, the Commission recommended that the State:

1. Make full reparations for the violations declared in this report, both in material and non-material aspects. The State shall adopt measures of economic compensation and satisfaction.
2. Establish adequate protection mechanisms for whistleblowers who, by reason of their employment or institutional position, expose irregularities, acts of mismanagement, acts of corruption, violation of human rights, violations of humanitarian law and other seriously affected public interests; the protection should prevent the application of legal, administrative or any other type of sanctions -including the protection of safe reporting within the Armed Forces-, in the event that at the time of disclosure the whistleblower had reasonable grounds to believe that the information disclosed was true and constituted a threat or harm to a specific public interest.
3. Adapt the domestic legal system, in particular the Regulations on Military Discipline, in accordance with the standards established in this report, in accordance with the general duty to adopt provisions of domestic law established in Article 2 of the American Convention on Human Rights.
4. Conduct training for personnel of the Armed Forces and security forces, including the authorities responsible for the application of disciplinary sanctions, regarding the protection of whistleblowers who expose acts of corruption or human rights violations, in light of the standards established in this report.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 180/21

12:21 PM