shot should not have been necessary.” 295 The judgment attributed the firing of the second shot 296 to GACF and acquitted AJCG because the first shot was fired in circumstances that excluded criminal responsibility under article 65(1) of the Criminal Code: compliance with a duty or the legitimate exercise of a right, authority, profession or position. 297 The defense filed a remedy of appeal against the conviction which was decided by the Appellate Court on April 25, 2002, confirming the guilty verdict delivered in first instance based on the analysis of the evidence, and concluding that the court had “determined a disproportion between the harm caused by the agent and the intention of committing a wrongful act” 298 (supra para. 91). An appeal for annulment was filed against this judgment, which was decided by the Cassation Chamber of the Supreme Court of Justice on November 29, 2002, ordering the annulment of the appeal and the restitution of the case to the situation in which the Appellate Court would again decide the appeal 299 (supra para. 92). 241. The Appellate Court delivered another judgment on November 10, 2003, in which it examined the evidence from another perspective, accepting as a fact the hypothesis of the confrontation and the account of the accused, “that when turning to fire a shot, the deceased received a bullet in the face with internal trajectory from front to back […].” 300 The Appellate Court concluded that the incident took place in a context of the legitimate use of force by the authorities, after using legitimate defense as the only means of subduing the armed attacker so that he would not continue to commit acts of violence using a firearm against the police agents. 301 In addition, it indicated that the analysis of the “contradictory” testimony of the eyewitnesses did “not reveal clearly that the accused was guilty of the crime of first-degree murder, a doubt that, in any case and for the purposes of the decision to be taken, should benefit him in order to ensure that justice is done,” 302 and therefore decided to dismiss the case, in favor of GACF. 303 The 295 Cf. First instance judgment of the Second Court of the Transitory Procedural Regime, Judicial District of the state of Aragua, of October 13, 2000 (annexes to the answering brief, folios 9605 to 9607). 296 Regarding the characteristics of this second shot, the Second Court underscored that the distance must have been slightly more than 60 centimeters, because the wound only had a halo of bruising rather than incrustations of gunpowder and burns. In this regard, expert witness Baraybar concluded that it is perfectly possible that Igmar Landaeta was lying on the ground and had received a shot “from a distance” in the face from someone who was above him, because the average distance between the barrel of a hand gun held by an adult with his armed extended is more than 50 centimeters. Cf. Testimony of expert witness José Pablo Baraybar of January 29, 2014 (merits file, folio 834). 297 Cf. First instance judgment of the Second Court of the Transitory Procedural Regime, Judicial District of the state of Aragua, of October 13, 2000 (annexes to the answering brief, folio 9602 and 9604). 298 Cf. Judgment of the Appellate Court of April 25, 2002 (annexes to the answering brief, folio 9673). 299 Cf. Judgment of the Supreme Court of Justice, sitting as a Criminal Cassation Chamber, of November 29, 2002 (annexes to the answering brief, folios 9735 and 9739). 300 Cf. Judgment of the Incidental Chamber of the Appellate Court of the Criminal Judicial Circuit of the state of Aragua of November 10, 2003 (attachments to the Merits Report, folio 1133). 301 This judgment stated that: “in order to decide that the act was not unlawful, not only the legitimate exercise of authority, as has already been established, is required, but also that this extreme measure was used in legitimate defense and as the only means to subdue the armed attacker so that he would not continue committing acts of violence with a weapon, which constituted resisting the authority of the police agents, a circumstance that has been proved […]; therefore, these grounds for excluding penalization are admitted [referring to the grounds under article 65(1) of the Criminal Code]”. Cf. Judgment of the Incidental Chamber of the Appellate Court of the Criminal Judicial Circuit of the state of Aragua of November 10, 2003 (annexes to the answering brief, folio 9841). 302 Cf. Judgment of the Incidental Chamber of the Appellate Court of the Criminal Judicial Circuit of the state of Aragua of November 10, 2003 (attachments to the Merits Report, folio 1134). 303 It should be noted that the Presiding Judge of the Appellate Court, Fabiola Colmenarez, dissented from the majority opinion indicating that, from the evidence in the case it was categorically concluded that “on measuring the result of the action, a disproportion could be determined between the harm caused by agent (GCF) and the intention of committing the wrongful act; [therefore, she] classified the act as intentional homicide” and confirmed the guilty verdict delivered. Cf. Dissenting opinion of the Presiding Judge, Judgment of the Incidental Chamber of the Appellate Court of the Criminal Judicial Circuit of the state of Aragua of November 10, 2003 (attachments to the Merits Report, folio 1152 and 1155). 65