would be of “compulsory and for general compliance by all Ecuadorian Navy personnel.”
114. The Court recalls that the States must create an adequate regulatory framework that
deters any threat to the right to life. Hence, domestic legislation must establish sufficiently
clear guidelines for the use of lethal force and firearms by state agents. 108 It is noted that the
provisions of the National Constitution in force at the time of the events did not include a
specific regulation regarding the use of force by the security forces. The same should be noted
regarding the content of the Criminal Code and the Military Criminal Code, also in force at that
time. Meanwhile, although the State referred to other legal bodies, these are regulations that
went into force after the facts of the case occurred (namely, the 2008 Constitution and certain
regulations approved in 2014), so they cannot be taken into account for this analysis.
Regarding the State's argument regarding the Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials and the Code of Conduct for Law Enforcement Officials,
Ecuador has not shown that at the time of the facts such regulations had been incorporated
into its domestic law and were applied regularly by the domestic authorities.
115. One last question that must be addressed here is the requirement of legality. According
to the established events, on December 7, 1999, the Port of Esmeraldas Harbormaster issued
a letter with reference number RAD-DIGMER-DOP-P-222000ZNOV-99, which is the order to
perform the “anti-crime operation” during which the events of the instant case were
consummated. Although the order mentioned, in very general terms, the “[procedures]” that
the agents had to follow in the framework of the operation (supra para 49), the nature and
scope of the provision issued do not satisfy the principle of legality required by inter-American
case law, and the guidelines on the use of force, in addition to being precise and clear, must
be provided for by "law,"109 understood in a formal sense, that is, a "legal norm adopted by
the legislative body and promulgated by the Executive Branch, according to the procedure
required by the internal law of each State," as "a requirement of the necessary limitation to
the interference of public power in the sphere of the rights and freedoms of human persons.110
116. Consequently, at the time of the events, the State did not meet the legality requirement
regarding the parameters for the use of force by agents of the security forces. This Court
reached the same conclusion in the case of Valencia Hinojosa et al. v. Ecuador, the facts of
which occurred in 1992, where the corresponding analysis was carried out in relation to
Cf. Case of Montero-Aranguren et al. (Detention Center of Catia) v. Venezuela, supra, para. 75, and Case of
Roche Azaña et al. v. Nicaragua, supra, para. 55. In this regard, the Human Rights Committee has indicated the
following:
The legal duty to protect the right to life requires that any substantive grounds invoked to justify the
deprivation of life be prescribed by law and defined with sufficient precision to avoid excessively broad or
arbitrary interpretation or application. […] [T]he law must strictly control and limit the circumstances in
which a person may be deprived of his or her life by those authorities, and States […] must ensure full
compliance with all of the relevant legal provisions.
Cf. Human Rights Committee, General Comment No. 36, Article 6: right to life, September 3, 2019, UN
Doc.
CCPR/C/GC/36,
par.
12.
Available
at:
https://documents-ddsny.un.org/doc/UNDOC/GEN/G19/261/18/PDF/G1926118.pdf?OpenElement.
109
Cf. Case of Montero-Aranguren et al. (Detention Center of Catia) v. Venezuela, supra, para. 68; Case of
Valencia Hinojosa et al. v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November
29, 2016. Series C No. 327, para. 137, and Case of Muñoz et al. v. Venezuela, supra, para. 92.
110
Cf. The expression "Laws" in Article 30 of the American Convention on Human Rights. Advisory Opinion OC6/86 of May 9, 1986. Series A No. 6, para. 27, and Case of Baena Ricardo et al. v. Panama. Merits, Reparations and
Costs. Judgment of February 02, 2001. Series C No. 72, para. 169. Similar comments were made by expert witness
Rodrigo Bustos Bottai, who, in reference to the case of Ecuador, indicated the following:
[N]or it would comply with the principle of legality in accordance with international standards […], since
there is no law that contains specific provisions aimed at regulating the actions of police officers, military
personnel, or other State agents empowered to use force. Here, we must remember that, as to the
principle of legality, [...] [there] has been an insistence on the obligation of the States to sanction norms
with the hierarchy of law and in compliance with international standards on the matter.
Cf. Written expert opinion rendered by Rodrigo Bustos Bottai (evidence file, volume XI, written expert opinion,
folio 5253).
108
28