Case Summary and Outcome

The Inter-American Court of Human Rights (IACtHR) held that Ecuador violated the right to freedom of expression, under Article 13 of the American Convention on Human Rights, of Captain Julio Rogelio Viteri Ungaretti by sanctioning him with prison sentences and termination of employment for denouncing acts of corruption in the armed forces. Viteri, an Ecuadorian military officer, faced multiple disciplinary sanctions—including four arrests, dismissal from military service, persecution, harassment, and threats that led them to seek political asylum in the United Kingdom—after denouncing alleged corruption acts within the Armed Forces of his country and making unauthorized statements to the media about the issue. Both Viteri and the Inter-American Commission on Human Rights asked the IACtHR to declare that Ecuador was internationally responsible for violating Viteri’s right to freedom of expression by not taking into consideration the public interest of the captain’s allegations. For its part, Ecuador argued that the sanctions were prescribed by law, legitimate, necessary, and proportional. The IACtHR held that the sanctions issued against Mr. Viteri were a retaliation for his allegations about corruption. According to the Court, the impugned statements benefit from protection under the right to freedom of expression. The Court emphasized the importance of protecting persons who uncover corruption, stating that such disclosures are of great public interest and essential to democracy and transparency. The Court noted that domestic military regulations requiring prior authorization to make statements to the media were excessively restrictive and hindered the free flow of information on matters of public interest. Consequently, the IACtHR awarded damages in favor of the petitioner and his family and ordered Ecuador to acknowledge the violations and apologize. It also ordered the State to amend its domestic laws to better protect whistleblowers.

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Facts

Julio Rogelio Viteri Ungaretti joined the Ecuadorian Navy on March 1, 1973. He was in the military for over 26 years, where he achieved the rank of Captain. On August 18, 2000, he was appointed Naval and Defense Attaché to the United Kingdom, Permanent Representative of Ecuador to the International Maritime Organization, and member of the Board of Governors of the World Maritime University in Malmö-Sweden. This position was held at the Embassy of Ecuador in London.

 

Sanctions

– First sanction

On July 9, 2001, Viteri, acting as Naval Attaché in the United Kingdom, sent to the Armed Forces of Ecuador a letter about the leasing contract of an apartment used by the persons who held the aforementioned position. In this letter, the official reported alleged irregularities during the negotiation of the contract and suggested not renewing it.

On November 13, 2001, the Commandant General of the Navy issued a three-day arrest order against Viteri, to be served upon his return to Ecuador, for violating Articles 44.d and 45.a of the Military Discipline Regulations. The Commander held that Viteri’s brief, alleging irregularities, included assertions that violated military discipline.

On January 27, 2002, Viteri returned to Quito with his wife and served the sanction.

 

-Second sanction

On November 8, 2001, Viteri denounced before the Ecuadorian Ambassador to the United Kingdom two possible acts of corruption related to the renewal of a leasing contract and the irregular acquisition of aircraft insurance policies for the Ecuadorian Armed Forces. The complaint was covered by the media in Ecuador and the United Kingdom.

On November 26, 2001, Viteri was summoned to appear in Ecuador before the Joint Command of the Armed Forces. On December 5, 2001, he was subjected to proceedings, without legal assistance, before a Disciplinary Council. The Council questioned the fact that Viteri notified the Ambassador and not his superiors in the Armed Forces, and concluded that this was a misconduct, according to the Military Discipline Regulations. The Council issued a 15-day arrest order.

On December 5, 2001, Mr. Viteri was notified of the sanction, to which he complied. On December 17, 2001, he was removed from his position as Naval Attaché in London. On January 16, 2002, a presidential decree reinstated Viteri in the Permanent Armed Forces.

 

-Third sanction

On January 25, 2002, the Directorate of Mobilization of the Ecuadorian Armed Forces reminded Viteri that only the Director of Mobilization could give statements to the media regarding institutional matters and that if he was interested in doing so he had to obtain prior written authorization.

On January 31, 2002, the Commander of Naval Operations asked Viteri to refrain from making statements to the press without authorization. On February 8, 2002, Viteri was sentenced to five days of rigorous arrest by the Commander of Naval Operations (according to Article 45.k of the Military Disciplinary Regulations) for making service-related statements without authorization. The sanction was served in February 2002.

 

– Fourth sanction

On April 2, 2002, Viteri gave an interview, without authorization from military authorities, to the newspaper “El Telégrafo” about his personal and military situation. On April 5, 2002, he was sanctioned by the Directorate of Mobilization of the Armed Forces of Ecuador with three days of arrest after giving such statements.

 

Judicial remedies

– Application before the Council of Superior Officers of the Naval Force

On December 27, 2001, Viteri requested the Council of Superior Officers of the Naval Force to vacate the first sanction. On February 19, 2002, this council declared itself unable to hear the request and closed it without further arguments.

 

– Habeas Corpus

On December 12, 2001, Viteri lodged a habeas corpus to challenge the 15-day arrest. That same day, the Joint Command of the Armed Forces rejected the application, considering that the remedy was not apt to challenge disciplinary arrests ordered by the Armed Forces. Viteri appealed the decision before the Metropolitan Mayor of Quito. On December 13, 2001, the Mayor rejected the appeal arguing it was a disciplinary arrest as per Article 24.6 of the Constitution of Ecuador.

 

– Amparo Action:

On March 11, 2002, Viteri filed an amparo action to annul the three arrests against him and the decision that removed him from his position. On April 2, 2002, the Second Chamber of the Administrative District Court No. 1 considered that the action was inadmissible. The court held that through an amparo only one of the administrative acts (through which the sanctions were issued) could be contested, not several.

On August 30, 2002, the Constitutional Court of Ecuador partially accepted the amparo action, annulling the three arrests against Viteri. The Constitutional Court held that he “was not notified in a timely manner of the charges against him, was subjected to interrogation without the assistance of defense counsel, and his repeated requests for the production of evidence were denied.” [para. 57] Likewise, the court emphasized that the process against Viteri lacked objectivity and impartiality. Additionally, the tribunal concluded that the sanctions caused serious professional damage to Viteri.

Subsequently, on October 28, 2002, the Ecuadorian Armed Forces expunged the arrest orders from Viteri’s curriculum vitae. 

 

– Harassment complaint, asylum in the UK, and petition to the Inter-American Commission on Human Rights (IACHR)

In April 2002, Viteri complained to the Armed Forces that he was being persecuted, threatened, and subjected to surveillance.

On May 29, 2002, the Armed Forces denied ordering any surveillance or sending any threats. On June 10, 2002, Viteri and his wife returned to London and, on July 29, applied for political asylum. While awaiting a response to his request, Viteri was discharged from his military post on January 9, 2003. After several appeals challenging this decision, the Supreme Council of the Armed Forces confirmed his dismissal on May 20, 2003.

On March 23, 2004, a United Kingdom Court of Appeal granted political asylum to Viteri and his family, in light of the threats and reprisals they had suffered. The Court of Appeal held that “Mr. Viteri had received threats from military authorities; that there was a pattern of attack on Mr. Viteri and his family too extensive to be regarded as mere coincidence and in which a genuine desire for revenge was demonstrated.” [para. 67]

On January 3, 2002, Viteri filed a complaint before the Inter-American Commission on Human Rights (IACHR) arguing that the sanctions, and acts of persecution, undertaken by the Armed Forces of Ecuador against him, violated his right to freedom of expression under Article 13 of the American Convention on Human Rights.

On July 22, 2015, the Commission issued Admissibility Report No. 36/15 admitting Viteri’s petition.

Subsequently, on July 5, 2021, the IACHR submitted Viteri’s case to the Inter-American Court of Human Rights (IACtHR). For the Commission, the Ecuadorian Armed Forces issued several decisions against Viteri as a reprisal for the captain’s allegations about corruption within the military. The Commission argued that these reprisals violated Viteri’s rights to freedom of expression, humane treatment, personal liberty, freedom of movement and residence, and judicial protection. It highlighted that this case reflected “the structural relationship between freedom of expression and democracy, in particular freedom of expression as a means for denouncing acts of corruption.” [para. 1]

On December 21, 2021, Ecuador responded to the Commission’s submission and requested its rejection. The State argued that it did not violate the petitioner’s right to freedom of expression. Ecuador also denied its international responsibility regarding the alleged human rights violations presented by the Commission and Viteri.

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Decision Overview

The Inter-American Court of Human Rights had to analyze whether Ecuador was internationally responsible for violating the right to freedom of expression, as laid out in Article 13 of the American Convention on Human Rights, of Julio Viteri by issuing several sanctions against him after he denounced possible acts of corruption within the Armed Forces of Ecuador and made several statements to the media.

The IACHR argued that Viteri’s allegations were an exercise of his freedom of expression and that he suffered retaliations because of them. The Commission also held that Ecuador violated the petitioner’s right to freedom of expression when the Armed Forces required Viteri to obtain prior authorization to make statements to the media. In turn, the IACHR held that the sanctions issued against Viteri did not pass the three-part test for restricting freedom of expression. In particular, the Commission emphasized that “allegations about  acts of corruption are a type of expression that should be protected by Article 13 of the Convention.” [para. 71]

For his part, Viteri agreed with the Commission’s arguments and requested that Ecuador be declared internationally responsible for violating his right to freedom of expression. He also asserted that obstructing allegations or reports about acts of corruption impairs freedom of expression and fosters impunity.

On the other hand, Ecuador argued that the controversy over the disciplinary sanctions imposed on the petitioner ended with the Constitutional Court of Ecuador’s decision in 2002—which annulled the sanctions and expunged them from his curriculum. Likewise, Ecuador considered that, according to domestic regulations, members of the Armed Forces can express their opinions in the media, but to do so they must obtain prior authorization due to the nature of military institutions. In addition, Ecuador asserted that the restrictions on the freedom of expression of military personnel, stipulated in the Military Discipline Regulations, are legal, necessary, and proportional to guarantee confidentiality, respect for authority, and institutional unity—which are essential to the mission of the Armed Forces. The State also argued that Viteri’s removal from his duties in London and the postponement of his participation in a course, were not sanctions nor did they affect his career. Finally, Ecuador asserted that the alleged acts of harassment were not proven.

First, the Court examined the effects of corruption on democracy and human rights. It stressed that freedom of expression, especially on issues of public interest, is fundamental to the existence of a democratic society. It also said that without the free debate of ideas, the democratic system is weakened, affecting pluralism and tolerance, and rendering ineffective the mechanisms of citizen control and oversight. This, in turn, favors the emergence of authoritarian systems.

The Court explained that the right to freedom of expression includes the right to seek and disseminate ideas of all kinds, as well as the right to receive the ideas disseminated by others. Citing its own jurisprudence in the cases of Ivcher Bronstein v. Peru and Baraona Bray v. Chile, the Court argued that freedom of expression has an individual and a social dimension, both of which are equally important and must be fully guaranteed simultaneously.

Subsequently, the IACtHR highlighted that there is no univocal definition of “corruption” in International Human Rights Law—although there is mention of certain actions that amount to acts of corruption, such as “bribery, detour of assets, trading in influence, abuse of functions, illicit enrichment, concealment and obstruction of justice,” [par. 80] among others, as said in the UN Convention on Corruption, articles 15 to 25.

The Court held that corruption negatively impacts the effectiveness of human rights and undermines the rule of law and democracy. It also stressed “the importance of States taking measures to create a safe and enabling environment for civil society, whistleblowers, witnesses, activists, human rights defenders, journalists, prosecutors, lawyers, and judges, in order to protect them from any threat arising from their activities in preventing and combating corruption.” [para. 85] The IACtHR also considered that “independent media, and the creation of a diverse and pluralistic media environment, play an important role in ensuring transparency and scrutiny, which includes reporting on corruption, investigating and denouncing acts of corruption, and raising public awareness of the link between corruption and human rights violations.” [para. 85]

Second, the Court examined the imposition of sanctions in relation to complaints about alleged acts of corruption. On this point, the Court said that expressions about public officials, or persons exercising functions of a public nature, enjoy greater protection since they enable a robust and broad debate in democracies, as said previously by the Court in the cases of Herrera Ulloa v. Costa Rica and Palamara Iribarne v. Chile.

Next, the IACtHR affirmed that “the occurrence of alleged acts of corruption, such as those in the instant case, is of clear public interest because they regard the actions of public officials in the exercise of their functions which, by their very nature, have an impact on the enjoyment of the human rights of individuals.” [para. 89] The Court underscored that societies have “a legitimate interest in knowing about the possible occurrence of acts of corruption. Therefore, the reporting of acts of corruption constitutes a specially protected form of expression in light of Article 13 of the Convention.” [para. 89]

It also held that regarding matters of public interest, such as allegations of corruption, public officials have a duty to report them when they have a reasonable conviction about their occurrence. Furthermore, relying on the cases of Halet v. Luxembourg and Guja v. Moldova, by the European Court of Human Rights, the IACtHR argued that whistleblowers only need to verify that the information is accurate and reliable under the circumstances, without having to establish the authenticity of the information at the time of the complaint.

Subsequently, the Court concluded that “to guarantee the exercise of the right to freedom of expression and to promote the reporting of alleged acts of corruption by public officials, the State has to provide adequate internal and external channels to facilitate and encourage the reporting of acts of corruption and to protect whistleblowers.” [para. 94] The Court held that these channels must be independent and impartial. They should also guarantee the confidentiality of whistleblowers and be able to issue a definitive response to the complaint within a reasonable period.

Third, the IACtHR applied international legal standards on freedom of expression and corruption to the case at hand. In particular, the Court examined the four sanctions against Viteri. It recalled that the first and second sanctions were issued because Viteri denounced, through letters addressed to Naval authorities and the Ambassador of Ecuador in the United Kingdom, alleged “acts of corruption”. The Court also pointed out that the third and fourth sanctions were imposed on the petitioner after he made statements to the media regarding these allegations, without prior authorization from the Armed Forces—as required by the Military Discipline Regulations of Ecuador.

The IACtHR held that the Ecuadorian Armed Forces “unduly sanctioned the legitimate exercise of the right to freedom of expression about information of public interest, in relation to the occurrence of alleged acts of corruption.” [para. 102] At the same time, it also considered that in the domestic judicial file, it was proven that Viteri had sufficient evidence to support his complaint—among it, a document detailing the irregularities that occurred in other contracts signed by the Embassy. In the Court’s opinion, Viteri had a reasonable conviction about the facts he denounced.

The Court looked back on Ecuador’s argument by which complaints about corruption should be lodged before the Prosecutor’s Office or the Judiciaryؙ—which explained why military personnel was restricted from speaking to the media. Analyzing this argument, the IACtHR highlighted the special protection that States should afford to whistleblowers and concluded that Ecuador lacked legal provisions or effective protection measures to shield them at the time of the events.

Moreover, the Court considered that the petitioner “as a member of the Armed Forces of Ecuador, had the right and the duty to make use of his right to freedom of expression to speak out about the alleged acts of corruption of which he became aware in the exercise of his duties.” [para. 107] Considering this, it concluded that “the application of the first two sanctions […] prevented Mr. Viteri from adequately exercising his right to freedom of thought and expression in relation to matters of public interest.” [para. 107]

Next, the Court found that it was not proven that Viteri disclosed information to the media, even though the Military Discipline Regulations established a prior authorization requirement for public statements. Nonetheless, the Court considered that this regulation was excessive and unduly limited freedom of expression and access to public information. Accordingly, the IACtHR held that “the last two sanctions imposed on Mr. Viteri constituted further punishments for the exercise of the right to freedom of expression. In effect, this Court finds that the imposition of these sanctions entailed that Mr. Viteri, as a member of the Armed Forces, had to obtain prior authorization to make any statement to the press—without distinguishing between information whose disclosure posed a real and identifiable risk that could cause significant harm to national security, from information that could and should be the subject of public debate for reasons of public interest.” [para. 111]

For all the reasons stated above, the Court concluded that Ecuador violated Viteri’s right to freedom of expression, as enshrined in Article 13 of the American Convention on Human Rights.

Consequently, the Court ordered reparations in favor of the petitioner. The IACtHR ordered Ecuador to recognize Viteri’s right to employment stability. It also ordered the State to pay Viteri, and his family, the sum of 165,000 dollars for the material and non-material damages they suffered, and to publish this judgment in national diaries. Furthermore, the Court ordered the State to publicly apologize to Viteri. In addition, it ordered Ecuador to adapt its legislation to protect whistleblowers and to train its armed forces for this purpose. Finally, the Court ordered Ecuador to pay for legal fees and expenses and to reimburse the Victims’ Legal Assistance Fund.

 

Concurring and dissenting votes

In his concurring vote, Judge Rodrigo Mudrovitsch explained that the disciplinary sanctions imposed on the petitioner were a retaliation for his corruption allegations.

Judge Mudrovitsch highlighted that the judgment reinforced the protection of the right to freedom of expression, especially in matters of public interest. The judge underscored the jurisprudential evolution of the IACtHR, which has restricted the use of criminal law in these contexts, thus favoring a democratic environment for free debate without fear of reprisals.

Judge Mudrovitsch also stressed the importance of protecting whistleblowers and established that the sanctions against Viteri were contrary to this protection. The judge explained that the Court ordered the State of Ecuador to create independent and secure channels for whistleblowers that guarantee their confidentiality and protect them from retaliation. In the judge’s opinion, the Court’s ruling fosters a more robust legal framework for transparency and accountability in the public sector.

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