taken into consideration the United Nations Manual on the Effective Prevention and Investigation of Extralegal, Arbitrary, and Summary Executions, specifying that “State authorities that conduct an investigation
must, inter alia, a) identify the victim; b) recover and preserve the probative material related to the death;
c) identify possible witnesses and obtain their statements in relation to the death under investigation;
(d) determine the cause, method, place and moment of the death, as well as any pattern or practice that could
have caused the death, and (e) distinguish between natural death, accidental death, suicide and murder. In
addition, it is essential to search exhaustively the scene of the crime [,] and autopsies and analyses of human
remains must be carried out rigorously by competent professionals, using the most appropriate
procedures.”243
169.
Moreover, while the obligation to investigate is an obligation of means, rather than results, it
must be taken on by the State as its own legal duty and not as a mere formality condemned beforehand to be
unsuccessful244 or as a mere reaction to private interests, which would depend on the procedural initiative of
the victim or his family or on the submission of evidentiary elements by private individuals.245
170.
The IACHR shall consider across the board the judgments issued on the use of military
criminal law in the initial stage of the proceedings, and in this aspect of the examination shall refer to the
omissions and inconsistencies in the analysis of isolated areas of the process found throughout the judicial
proceedings – in both in the criminal and civil courts – concerning the death of Johan Alexis Ortiz Hernández.
From the analysis of the available information, the following aspects stand out:
a.
The place where Johan Alexis Ortiz was reported to have been wounded was from the very
outset under the custody of members of the NG. While this was a military training exercise
that had to be conducted at the installations of the Rural Commandos of Caño Negro, the case
file indicates that no steps were taken to preserve the scene of the crime and ensure the
chain of custody of the evidence to be gathered from the site. From the action taken by the
Judicial Technical Police, it can be seen that only a visual inspection of the Outpost No. 19
obstacle course was made and that the police collected 14 shell casings and photographed
the scene.
b.
There were inconsistencies with regard to the characteristics of the projectiles removed
from the body of Mr. Ortiz. According the petitioners’ account, with bullets from a weapon
like one used in the training exercise, the projectiles should have been “copper-colored,
reddish;” however, the autopsy report indicated that the fragments found were gold-colored.
The parents brought this to the attention of the Standing Court Marshal [Judge] of San
Cristóbal, but from the available evidence it appears that no inquiries were made to
elucidate the matter. Moreover, the pathologist who performed the autopsy declared to the
Ministry of Public Prosecution that she did not recognize the fragments collected during the
investigation conducted by the Office Military Prosecutor and reiterated that they did not
have the same characteristics as those taken from the body of Mr. Ortiz. Analysis of the case
file and, specifically, the charging document issued by the Office of the Prosecutor, shows
that no action was taken to shed light on this matter. This, added to the fact that one of the
repeated contentions of the parents during the judicial proceedings, which can be seen from
243 I/A Court H.R., Case of the Moiwana Community. Judgment of June 15, 2005. Series C No. 124. Par. 149; I/A Court H.R., Case
of Miguel Castro Castro Prison. Judgment of November 25, 2006. Series C No. 160. Par. 383. Citing the United Nations Manual on the
Effective Prevention and Investigation of Extra-legal, Arbitrary, and Summary Executions, Doc. E/ST/CSDHA/.12 (1991).
244 I/A Court H.R., Case of Velásquez Rodríguez. Judgment of July 29, 1988. Series C No. 4. Par. 177; I/A Court of H.R., Case of
Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objections, Merits, Reparations, and Costs. Judgment of July 10, 2007. Series
C No. 167. Par. 131; and I/A Court H.R., Case of Zambrano Vélez et al. v. Ecuador. Merits, Reparations, and Costs. Judgment of July 4, 2007.
Series C No. 166. Par. 120.
245 I/A Court H.R., Case of Velásquez Rodríguez. Judgment of July 29, 1988. Series C No. 4. Par. 177; I/A Court H.R., Case of
Zambrano Vélez et al. v. Ecuador. Merits, Reparations, and Costs. Judgment of July 4, 2007. Series C No. 166. Par. 120.