Denver Bar Association
September 2004
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Justice/Karma in Ecuador? Tony Viorst Heads to South America

by Tony Viorst

Editor’s note: The Association of Black Ecuadorans "ASONE," recently sought assistance from the University of Denver’s Center for International Human Rights. ASONE, through its President, Victor Rodriguez, has filed a lawsuit against Petro-Ecuador, the government-owned oil company, for environmental contamination in the province of Esmeraldas. A trial to the court resulted in a verdict against ASONE. Since January 2003, the case has been on appeal. Serving as a volunteer for the Center, Viorst traveled to Ecuador in June, in order to assist ASONE during a meeting with the court of appeals judges.

Tony Viorst with Victor
Rodriguez in Ecuador.
When I got off the plane in Esmeraldas and walked out of the terminal, I saw Victor Rodriguez walking toward me in a bright white suit, followed closely by a group of approximately six armed bodyguards. (Victor is convinced that the Ecuadoran government wants to assassinate him because of his lawsuit.) He greeted me warmly and introduced me to his bodyguards. I was aware that neither Victor, nor ASONE, had any disposable income, and I wondered how he could afford these bodyguards. He later told me that he had sold his computer in order to pay for their services.

Unbeknownst to me, ASONE’s current Ecuadoran lawyer (as opposed to the former lawyer, who ostensibly had been bought off by Petro-Ecuador) had been traveling on the same plane with me. The current lawyer, Dr. Luis Herreria Bonnet (in Ecuador, all lawyers are identified by the prefix "Dr."), was formerly a Justice on the Ecuador Supreme Court.

There are 22 provinces in Ecuador, one of which is Esmeraldas, located in the northwest part of the country. A large percentage of the province’s residents are black, apparently because a slave ship capsized off the Esmeraldas coast some time in the mid-1800s. The standard of living in Esmeraldas is extremely low, even by Ecuadoran standards.

The city of Esmeraldas is the capital of the province by the same name. As we drove toward the city, I was struck by the large number of dilapidated huts in which people live, the ramshackle buildings that serve as commercial establishments, and the strong smell of factory and vehicle exhaust fumes. Although the city is clearly in a state of disrepair, the residents of Esmeraldas are dressed neatly, in dresses or long slacks.

We stopped at the best hotel in Esmeraldas, the Aparthotel, which was Spartan but clean. After Dr. Bonnet and I dropped off our belongings, he and I sat down with Victor at the hotel bar. There, we drank Cuba Libres (Rum and Cokes), and spoke about ASONE’s case. First, Dr. Bonnet explained the procedural posture of the case. He stated that the case was currently pending before the provincial court of appeals, which was likely to reverse the trial court outright, without remanding the case. However, in the event of a reversal, Petro-Ecuador would have the right to seek review by the Ecuador Supreme Court. And, in light of the fact that Petro-Ecuador is broke, if ASONE wins the case in the Supreme Court, it can only collect its judgment by attaching the assets of Petro-Ecuador.

The bodyguards hired for Victor Rodriquez.
Dr. Bonnet explained that he had set up a meeting with the three court of appeals judges for 9 a.m. the following morning. (In Ecuador, there is no prohibition against ex parte contacts with the court.) At the meeting, he intended to argue the merits of ASONE’s case, and to urge a quick resolution of the appeal. Bonnet believed that the combination of his status as a respected ex-Justice of the Ecuador Supreme Court, and my status as a representative of the United States and the international legal community, would exert pressure on the judges to render a swift and favorable decision in the case.

Dr. Bonnet and Victor then moved on to a theme that would be revisited several more times over the next two days. They asked me if the D.U. Center for International Human Rights would pay Dr. Bonnet’s legal fees, so that he could continue to represent ASONE during the Supreme Court phase, as well as the attachment phase, of the case. Dr. Bonnet made it very clear that, if he was not paid up front for his services in this case, his appearance before the Esmeraldas Court of Appeals would be his last.

I suggested to Dr. Bonnet that he consider entering into a contingent fee agreement with ASONE, but Dr. Bonnet said that Ecuadoran lawyers do not work on a contingency fee basis, and that he would not do so. I then asked Dr. Bonnet what kind of monetary infusion would be necessary to ensure his continued involvement in the case, and he said $150,000. I explained to Dr. Bonnet and Victor that the Center did not have that kind of money, and that in fact it did not have any money to pay for legal fees. Rather, the Center was willing to donate the services of its lawyers, and my presence in Esmeraldas constituted such a donation.

When we got to the courthouse the following morning, we were immediately shown to the Chief Judge’s chambers, which included a large conference room. Victor, Dr. Bonnet and I sat around the conference table with the Chief Judge and the two associate judges who would be ruling on ASONE’s appeal, while three bodyguards remained standing in the corners.

Viorst on the rim of Pululahua Volcano,
outside of Quito, Ecuador.

Dr. Bonnet took the lead and introduced himself, as well as Victor and me. He stated that I was an American lawyer, and a representative of the Center for International Human Rights. The Chief Judge then requested my "credentials," but it was not clear to me exactly what he wanted. First, I handed him my card, but he said "no, your credentials." I then handed him a card bearing the name of the Center for International Human Rights, and its Director, Bob Golten. I told the Judge that this was the organization I was representing. He seemed satisfied at that point. However, I later learned, while talking to Bonnet at lunch, that what he had wanted to see was my bar card, proving that I was in fact a lawyer.

After the introductions, Dr. Bonnet launched into an eloquent speech about the strength of ASONE’s case, in which he cited directly to several trial exhibits, and the damages suffered by the plaintiffs as a result of Petro-Ecuador’s contamination of the environment. He also asked that the Court resolve the appeal as quickly as possible.

Once Bonnet was done, the Chief Judge turned to me and asked if there was anything I would like to say. I told him that my Spanish-speaking ability was not fluent, and that therefore I was going to read from a prepared text. I proceeded to read a statement in which, as a representative of the international community, I urged a swift and just resolution of the case.

After I finished speaking, each of the three judges made a statement explaining why the resolution of the appeal had been delayed. The reasons included other pressing business and the amount of evidence in the case. After each judge had spoken, the Chief Judge promised that a judgment would be handed down within 15 days.

While the judges were speaking, I heard a group chanting outside, but I could not make out what they were saying. Fearing that the crowd was hostile to ASONE’s position, and might pose a danger when we exited the building, I quietly asked Victor (who was sitting next to me) if he knew who was outside. He stated that it was members of ASONE asking the judges to hand down a favorable decision. He later informed me that this was not an isolated event, and that ASONE had been chanting outside the courthouse every Wednesday for the past year-and-a-half.

After the judges’ speeches, and a few minutes of small talk, we shook hands with each judge, and then stepped out into the hallway. In the hallway, we were met by representatives of the local television station, who interviewed Victor, Dr. Bonnet and me. I stated once again that we were concerned about the delay in resolving the case. The interviewer then asked me what I thought about the merits of ASONE’s case. I responded that if Petro-Ecuador had contaminated the environment (and the evidence suggested that it had), then the company should be required to compensate the people of Esmeraldas for the resulting damage to their environment, and to their health. The interviewer then asked me if I was employed by the U.S. Government, and I told him that I was not a government employee, but rather a representative of the Center for International Human Rights.

Once outside, we were greeted warmly by the crowd of roughly 200 people. Victor asked them to relocate to a nearby park, so as not to block traffic, and we walked there en masse. At the park, Victor introduced me, and I made a short speech, in which I stated that the people of Esmeraldas have the right to live in a clean environment. This statement drew cheers. While we were at the park, three bodyguards stood directly behind us, and three others stayed on the outskirts of the crowd.

After lunch, we returned to the hotel, where Dr. Bonnet and I picked up our luggage, and paid our tab. Outside the hotel, I saw Dr. Bonnet hand the bill to Victor, and heard him express frustration at the fact that he had had to pay his own air and hotel bills. I did not hear Victor’s response. Dr. Bonnet and I then went to the airport, where we caught the same flight to Quito, the country’s capital. On the plane, Dr. Bonnet told me what Victor had said outside the hotel, in response to Dr. Bonnet’s request for payment. Victor had responded that "God will pay you," meaning that Dr. Bonnet would be rewarded in the afterlife for his good deeds here on earth. I told Dr. Bonnet that I thought we had done a good deed today, and that I actually believed that what Victor had said was true. Dr. Bonnet was not so sure.

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