IACHR found a violation of the ACHR requirements in relation to the applicants.

Заголовок: IACHR found a violation of the ACHR requirements in relation to the applicants. Сведения: 2020-07-21 04:37:19

Inter-American Court of Human Rights judgment of 22 August 2017 in the case of Ortiz Hernandez and Others v. Venezuela (Series C, no. 338).

The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San José, Costa Rica). The complaint was then communicated to Venezuela.

The case successfully addressed a complaint about the obligations of the state with respect to personnel undergoing military training.

State obligations towards personnel undergoing military training.


THE CIRCUMSTANCES OF THE CASE


On February 15, 1998, Hohan Alehis Ortiz Hernandez, a 19-year-old cadet, died in a public hospital after being wounded by bullets while training in the military, where he was training to enter the National Guard. The circumstances under which the incident took place remain unclear. The investigation into his death began under military jurisdiction, but did not go beyond the interim stage of the proceedings. Ortiz Hernandez's father filed an amparo (constitutional remedy) application, requesting that the investigation be transferred to ordinary jurisdiction. The Constitutional Chamber of the Supreme Court upheld the amparo and annulled the military proceedings, barring evidence that could not be reproduced. The case was referred to the prosecutor's office, which ordered a new investigation in 2003. At the time of the ruling of the Inter-American Court of Human Rights, the facts had not been clarified and no one had been prosecuted. Ortiz Hernandez's parents have faced threats and intimidation in connection with their efforts to get justice. At a public hearing at the Inter-American Court of Human Rights, state authorities partially admitted their international legal responsibility.


QUESTIONS OF LAW


(a) Articles 4 (1) (right to life) and 5 (1) (right to security of person) of the American Convention on Human Rights (hereafter - ACHR) in conjunction with Article 1 (1) ACHR (obligation to respect and ensure rights without discrimination). The Inter-American Court of Human Rights noted the fact that Ortiz Hernandez was subordinate to the state, as he was a military academy cadet. In this respect, the Court has indicated that, even if military service carries an inherent risk due to the nature of the specific functions, the state is obliged to ensure the life and personal integrity of members of the armed forces in all aspects of military life, including military training and the maintenance of military discipline. Accordingly, the state is obliged to take preventive measures in order to minimize the threats that members of the armed forces face in military life. The Inter-American Court of Human Rights also noted that, even if it may be legal to restore conditions similar to those encountered during military missions so that military training is as realistic as possible, such conditions should not create unnecessary risks to life. and the immunity of personnel. States have the right to regulate and determine the appropriate form of training, if it remains within these limits.

The Inter-American Court of Human Rights has assessed state responsibility in three dimensions. First, he analyzed the regulation and conduct of training with particular regard to ammunition. The second aspect concerned the failure to comply with security measures aimed at protecting the life and personal integrity of cadets, including foresight and access to adequate and timely medical care. Finally, the Court has examined the arbitrary nature of the death and the likelihood of the hypothesis that it was not simply due to a failure to take the necessary safety and preventive measures with firearms, but could have been caused by a weapon fired at close range and could amount to willful homicide. As a result, the Inter-American Court of Human Rights held the state liable for violations of Articles 4 (1) and 5 (1) ACHR in connection with Article 1 (1) ACHR.


RESOLUTION


There was a violation of the Convention in respect of Ortiz Hernandez (adopted unanimously).

(b) Articles 8 (1) ACHR (right to a fair trial) and 25 (1) (right to a remedy) in relation to Articles 1 (1) (duty to respect and enforce rights) and 2 ACHR (meaning of domestic law) ... The Inter-American Court of Human Rights recalled its jurisprudence regarding the extent to which military jurisdictions can consider facts constituting human rights violations. He noted that the case did not concern facts and crimes related to military discipline and activities, therefore, the investigation should have been carried out within the framework of normal jurisdiction. In addition, he noted that during the investigation, the State failed to take some of the essential steps required to determine the circumstances in which the death occurred, such as preserving the crime scene and ensuring the inviolability of evidence. The state also failed to take appropriate measures to find the accused who showed contempt of court.

In this respect, the investigation did not meet the requirements of due diligence. Thus, the state was liable for violations of Articles 8 (1) and 25 (1) of the ACHR in connection with Articles 1 (1) and 2 of the ACHR, to the detriment of Ortiz Hernandez's parents.


RESOLUTION


There was a violation of the Convention in respect of Ortiz Hernandez (adopted unanimously).

(c) Compensation. The Inter-American Court of Human Rights found that the judgment itself constituted a form of compensation and ordered the State to: (i) continue and conduct, with due diligence and within a reasonable time, ongoing investigations and criminal proceedings, and organize effective investigations as necessary; (ii) establish, with the assistance of the competent public authorities, the accountability of officials who contributed to procedural delays and denial of justice; (iii) take all necessary measures to ensure the safety of Ortiz Hernandez's parents in their quest for justice; (iv) provide free, adequate and effective psychological and / or mental health care to all victims who require it; (v) publish the decision and its official summary; (vi) to commit an act of recognition of the international legal responsibility of States; (vii) name the military academy graduate class after Johan Alehis Ortiz Hernandez; (viii) explicitly indicate the type of ammunition to be used in specific training; (ix) pay compensation for non-pecuniary damage and legal costs and expenses.

 

 

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