21.
As to the inconsistencies, they claim for example that the bullet, which caused their son’s
death, was lodged in his right arm, despite the fact that the instructor, who was firing the shots, was located
on his left side; that the bullet wound had no exit hole despite the close distance from where the instructor
was firing; and that the projectiles extracted from his body are not the same ones that are on record as
evidence in the investigation. They also noted that during the practice exercise, real bullets were used, which
they claim amounts to a serious irregularity, particularly, because they learned that there was an advanced
instruction prior to the actual combat training exercise, that live rounds of ammunition were not supposed to
be used and that this instruction had been changed without any justification.
22.
The petitioners also contended that there were no safety measures in place nor medical
assistance available to treat emergenciesat the location where the combat training exercise was held (which
would be required in light of the instruction given for the exercise to use live rounds of ammunition), and that
the alleged victim did not receive adequate and timely medical assistance. They also argued that their son’s
body showed signs of torture, which they photographed prior to burying him and provided to the authorities,
who investigated the case. The petitioners alleged that Johan Alexis “was tortured, clandestinely, after being
mortally wounded, with beatings, dislocation of his shoulder, while he was in the throes of death, cigarette
burns” and that he did not receive the immediate medical care he needed, but was transferred instead with
delay to a rural hospital, where he ultimately died.
23.
They claimed that the incidents were first investigated jointly by the Judicial Technical Police
of San Cristobal (hereinafter “PTJ”) and the Military Court of Guasdualito, and that the court case was brought
in the military courts, where consecutive judgments were vacated. They contended that trying the case in
military criminal courts contributed to the impunity of the crimes and that despite the motions they filed for
jurisdiction to be transferred to the ordinary civilian courts, the military authorities continued to try the case
until 2002, when the Constitutional Chamber of the Supreme Court of Justice (hereinafter “TSJ”) ordered the
transfer of the case to the ordinary justice system. They argued that in the proceedings before the military
courts, fundamental evidence was not gathered and other evidence was gathered late or with irregularities or
“tampering” and that, in general, the proceedings were designed to bear out the version given by the
authorities of ESGUARNAC. They noted that the military officers allegedly involved refused to give statements
to the PTJ and that most of the evidence collected by the Technical Police remained in the custody of the
military authorities.
24.
With respect to the case beforethe civilian courts as of 2002, they claimed that the Ministry
of Public Prosecution also engaged in improper delays; that the Office of the Prosecuting Attorneydid not
issued a decision to prosecute in the investigation against a national guardsman until 2012, andthat the
charge was dismissed on the grounds that it did not fulfill due process of the law requirements; that in 2013,
the Office of the Prosecuting Attorney filed a new charging document, which once again did not fully examine
the evidence on record of the 25 exhibits contained in the case file; that the preliminary hearing was
postponed on a number of occasions, as of the time the second charging document was issued, and that an
arrest warrant is pending execution against the only defendant.
25.
They contended that thus far no personhas stood trial nor have the circumstances of the
crimes been elucidated yet. Consequently, they claimed that an effective judicial remedy is not available,
because the investigation has not been conducted with due diligence and the reasonable period of time
requirement has been infringed in the criminal proceeding for the death of their son.
26.
The petitioners also claimed that the death of Johan Alexis Ortizhad a profound effect on the
lives of his parents, siblings and the entire family and that the feelings of frustration and bereavement have
been drawn out over an excessive length of time, thus increasing their grief over the lack of clarity and
response to events.3They alleged that they were forced to undertake part of the investigation and to move the
3 Accordingly, they single out in this case as victims of the violation of the right to psychological and moral integrity Edgar
Humberto Ortiz and his wife Maritza González Cordero; Mrs. Zaida Hernández Hernández and her husband Saúl Arellano Moral, and
Johan Alexis’ brothers and sisters: Jeckson Edgardo Ortiz González, Greisy Maried Ortiz González, Gregory Leonardo Ortiz González, Saida
Dariana Arellano Hernández and Saul Johan Arellano Hernández.