Communication No. 480/1991 Submitted by: José Luis García Fuenzalida [represented by a non-governmental organization] Alleged victim: The author State party: Ecuador Declared admissible: 15 March 1995 (fifty-third session) Date of adoption of Views: 12 July 1996 (fifty-seventh session) * Subject matter: Discrimination and ill-treatment of detainees on grounds of sexual orientation decision by the Court of Cassation, the author withdrew his appeal on cassation in exchange for his release. He was released on parole in October 1994. Procedural issues: Failure to substantiate claim 2.2 With regard to his arrest, the author states that on 5 July 1989, at approximately 7 p.m., he was detained by police officers, thrown to the floor of a vehicle and blindfolded. From the submission it is not clear whether an arrest warrant had been issued. The author apparently did not know the reason for his arrest and initially supposed it was in connection with drugs. It was not until two days later that he learned about the alleged rape. He was interrogated regarding his whereabouts on the day of the rape. He claims to have been subjected to serious illtreatment, including being left shackled to a bed overnight. It is also alleged that, in contravention of Ecuadorian law and practice, samples of his blood and hair were taken. Substantive issues: Principle of non-discrimination Arbitrary arrest - Torture and ill-treatment Unfair trial Articles of the Covenant: 2 (3) (a), 3, 7, 9, 10, 14, and 26 Articles of the Optional Protocol and Rules of Procedure: 2, 3, 4, paragraph 2, and 5, paragraphs 2 (b) and 4, and rules 85 and 93 (3) Finding: Violation [articles 7, 10, paragraph 1, 14, paragraphs 3 (c) and (e) and 5] 1. The author of the communication is José Luis García Fuenzalida, a Chilean citizen, currently residing in Quito. At the time of submission of the communication, he was imprisoned at the Cárcel No. 2 in Quito. He claims to be a victim of violations by Ecuador of articles 3, 7, 9 and 14 of the International Covenant on Civil and Political Rights. He is represented by the Ecumenical Human Rights Commission, a non-governmental organization in Ecuador. 2.3 It is alleged that during the evening of 6 July 1989, the author was blindfolded and that a brine solution was poured into his eyes and nostrils. The author alleges that at some point of the interrogation the blindfold fell from his eyes and he was able to identify an officer who, the author claims, had a grudge against him from a prior detention on suspicion of murdering a homosexual friend. 2.4 That same evening, he was taken to the Criminal Investigation Department of Pichincha (SICP), where he was subjected to death threats until he consented to sign an incriminating statement. However, it is clear from the judgement that the author, during his trial, denied both the charges and the voluntariness of the statement. The judgement reflects that the author made before the judge a long and detailed statement of the facts concerning his detention and confession under duress. The facts as submitted by the author 2.1 The author is a hairdresser by profession. He was detained on 5 July 1989 and charged two days later with the rape, on 5 May 1989, of one D. K., a United States Peace Corps volunteer. He claims to be innocent and argues that he has never had sexual relations with any woman. The author was tried by the Tribunal Cuarto de Pichincha. On 11 April 1991, he was found guilty as charged and sentenced, on 30 April 1991, to eight years' imprisonment. On 2 May 1991, the author appealed to the Superior Court, demanding the nullity and cassation of the judgement. The request for nullity was rejected by the court and the appeal on cassation was not resolved within the period of 30 days established by law. After waiting for two years and six months for a 2.5 The author claims that he learned of the facts of the rape only when charges were read to him on 7 July 1989, just before he was put on an identification parade in which the victim identified him. The author further alleges that, before he was put on the identification parade, he was taken to his house to shower, shave and dress, as instructed by the police. The author also claims that the police took several pieces of underwear from his house, which were then used as evidence against him, despite the testimony by a witness, MC. M. P., that they belonged to her. * Pursuant to rule 85 of the rules of procedure, Committee member Julio Prado Vallejo did not take part in the adoption of the Committee's views. 35