admitted the charges, in relation to the alleged offense of negligent homicide against
National Guardsman Gean Carlos Malpica.
15. On May 29, 2000, the Court Martial, ruled on an appeal filed by the Third
Prosecutor’s Office and the victim’s family, declaring the partial nullity of the
indictment and ordering the Court to hold another hearing to deal with the other
accused individuals. On December 13, 2000, the Criminal Division [Sala de Casación
Penal] of the Supreme Court of Justice ruled on an appeal for revocation filed by the
victim’s family. The Supreme Court decided not to revoke the judgment, arguing that
the revocation remedy did not apply to the decision appealed.
16. On February 23, 2001, a preliminary hearing was held before the Military Court
[Juzgado Militar Accidental] of Guasdualito, pursuant to the orders issued by the Court
Martial. At the hearing, Gean Carlos Malpica was formally charged with the alleged
offense of negligent homicide and four other members of the military were charged as
military co-authors in the crime and for the crimes of concealment and pretense. The
Court Martial once again declared this decision invalid on August 22, 2001, and
ordered that a third preliminary hearing be held in the case.
17. On October 5, 2001, the Military Criminal Court of First Instance presented a new
indictment for the prosecution of Colonel Rafael Rijana, Colonel Alexander Florez,
Major Edwin Villasmil, Lieutenant Fidel Rodríguez and Lieutenant Rafael Villasana for
the commission of the crime of negligent military coauthorship in the crime of
negligent homicide; and Major Edwin Villasmil for the offense of aggravated negligent
homicide for participating as an intellectual and material author; and for the
prosecution of Captain Gerson Jiménez, Gean Carlos Malpica and Antonio Linares for
the offenses of concealment and pretense [ocultamiento y simulación] in a criminal
act. None of these individuals were subject to pre-trial detention.
18. On November 19, 2001, the Constitutional Division of the Supreme Court of Justice
admitted an amparo remedy lodged by the victim’s family members in which they
requested that the ordinary courts take exclusive control over the legal proceedings.
On June 11, 2002, the Constitutional Division ruled on the amparo remedy, ordering
that the events be prosecuted in the ordinary jurisdiction since the crime of homicide
was typified in that jurisdiction. It further ordered the annulment of all the previous
proceedings, with the exception of evidence that could not be replicated, and ordered
the file transferred to the Public Ministry.
19. On September 10, 2002, the Superior Prosecutor’s Office of Táchira State, in
compliance with the ruling issued by the Constitutional Division, remanded the case to
the Seventh Prosecutor’s Office where an official from the Scientific, Criminal, and
Forensic Investigations Corps [Cuerpo de Investigaciones Científicas, Penales y
Criminalísticas (CICPC)] was assigned to proceed with the investigation. On March 7,
2003, an order to open the investigation was issued. At that time, the officer in charge
began the process of studying the extensive amount of evidence compiled in 21
voluminous exhibits. In a matter of days, this official was separated from the case. The
petitioners claim that the investigation has been paralyzed from that day forward.
Seven years after the events occurred, the investigation remains in the preliminary
stage, with over a year of procedural inactivity. Furthermore, the petitioners claim that
the investigation was not reopened until July 14, 2004, and is not being conducted by
public official on a full-time bases.
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