I/A Court H.R., Case of Ortiz Hernández et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 22, 2017. Series C No. 338.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.]

 

Facts - On 15 February 1998 Mr Johan Alexis Ortiz Hernandez, a 19-year-old cadet, passed away in a public hospital after receiving bullet wounds during an exercise at a military facility where he was training to become a member of the National Guard. The circumstances in which the incident occurred remain unclear. An investigation into his death was opened in the military jurisdiction but did not advance beyond the intermediate stage of the proceedings. Mr Ortiz Hernández's father submitted an application for amparo (constitutional recourse) seeking an order for the investigation to be transferred to the ordinary jurisdiction. The Constitutional Chamber of the Supreme Court of Justice admitted the amparoand annulled the proceedings in the military jurisdiction, except for the evidence that could not be reproduced. The case was deferred to the Office of the Prosecutor, which ordered a new investigation in 2003. At the time the Inter-American Court rendered its judgment, the facts had not been clarified and had not been held accountable. Mr Ortiz Hernández's parents suffered threats and harassment due to their efforts to pursue justice. At the public hearing before the Inter-American Court, the State made a partial acknowledgment of its international responsibility.

 

Law

 

(a) Articles 4 (1) (right to life) and 5 (1) (right to personal integrity) of the American Convention on Human Rights (ACHR), in conjunction with Article 1 (1) (obligation to respect and ensure rights without discrimination) - The Inter-American Court highlighted the fact that Mr. Ortiz Hernandez was in a situation of subjection with regard to the State as he was a cadet at the military academy. In this regard, the Court held that even though military activity carries an inherent risk because of the nature of the specific functions, the State is obliged to protect the life and personal integrity of the members of the armed forces in all aspects of military life, including military training and in maintaining military discipline.Accordingly, the State is obliged to take preventive measures to minimize the risk faced by members of the armed forces during military life.

 

The Inter-American Court further observed that even though it could be legitimate to recreate conditions similar to those likely to be faced during military missions, that military training was as realistic as possible, such conditions must not create excessive risks to the life and integrity of the personnel. States were free to regulate and determine the appropriate form of training should take, provided it remained within those limits.

 

The Inter-American Court conducted a threefold assessment of the State's responsibility. Firstly, it analyzed the regulation and execution of the training exercise, with particular reference to the use of live ammunition. The second aspect concerned non-compliance with security measures designed to protect the life and personal integrity of the cadets, including foresight and access to adequate and timely medical treatment. Finally, the Court examined the arbitrary character of the death and the plausibility of the hypotheses that indicated that it was not simply due to a failure to adopt the necessary security and preventive measures for firearms, but may have been caused by a weapon fired at close range and may have been an intentional homicide. As a result, the Court found the State responsible for the violation of Articles 4(1) and 5(1) of the ACHR, in relation to Article 1(1) thereof.

 

Conclusion : violation in respect of Mr Ortiz Hernández (unanimously).

 

(b) Articles 8 (1) (right to a fair trial) and 25 (1) (right to judicial protection), in relation to Articles 1 (1) (obligation to respect and ensure rights) and 2 (domestic legal effects) of the ACHR - The Inter-American Court recalled its jurisprudence regarding the limits of military jurisdictions to examine facts constituting human-rights violations. It was noted that the case did not relate to facts and criminal offenses connected to military discipline and activity so the investigation should have been conducted under the ordinary jurisdiction.Furthermore, it was found that during the investigation the State had taken certain essential measures that were required to determine the circumstances in which the death had occurred, such as preserving the crime scene and ensuring the inviolability of the chain of custody of the evidence. Nor had the State taken appropriate action to find the accused, who was in contempt of court. In this regard, the investigation had not satisfied the requirements of due diligence. The State was thus responsible for the violation of Articles 8(1) and 25(1) of the ACHR, in relation to Articles 1(1) and 2 thereof, to the detriment of Mr Ortiz Hernández’s parents. 

 

Conclusion : violation in respect of Mr. Ortiz Hernandez's parents (unanimously).

 

(c) Reparations: The Inter-American Court established that the judgment constituted per se a form of reparation and ordered that the State- (i) continue and conduct, with due diligence and in a reasonable time, the ongoing investigation and criminal proceedings and open an effective investigation if deemed necessary; (ii) determine, through the competent public institutions, the responsibility of the public officials who had contributed to the procedural delays and the denial of justice; (iii) take all action required to guarantee the security of Mr. Ortiz Hernández's parents in their pursuit of justice; (iv) provide free, immediate, adequate and effective psychological and / or psychiatric treatment to those victims who requested it; (v) publish and broadcast the judgment and its official summary; (vi) perform an act acknowledging the State's international responsibility; (vii) designate one year's class of graduates of the military academy with the name Johan Alexis Ortiz Hernandez; (viii) expressly indicate the type of ammunition to be used in all military training, according to their nature and purpose, and strictly justify the need to use live ammunition in a specific exercise; and (ix) pay compensation in respect of pecuniary and non-pecuniary damage, as well as costs and expenses.