96
necessary that the State act “within the limits and pursuant to the procedures that
permit both the preservation of public security as well as the fundamental rights of
human beings.”138 In cases that have come before this Court in which the State has
used force to maintain public order within criminal centers when there is a riot, which
did not happen in the present case, the Tribunal has analyzed if there were sufficient
elements to justify the magnitude of the force used.139
241. However, as was established (supra para. 215), at the time at which the
State started the “operative” the inmates were not in mutiny and it has not been
proven that there was any cause that called from the legitimate use or force by the
state agents in that first act of the attack. The resistance presented by the inmates
was after the attack, as a normal reaction to the offensive of the police officials, as
the result of a natural instinct of defense of their life and physical integrity.
242. For the four days during which the so-called “Operative Transfer 1” lasted the
inmates of pavilions 1A and 4B constantly saw their lives threatened sue to the
intensity of the attack, which implied the use of weapons of war and the participation
of police and army agents, as well as special forces, and for the magnitude of the
damages produced (supra para. 197(18) through 197(38)). According to the
evidence included in the case file, the inmates spent four days looking for ways to
survive the multiple and constant actions of the state that could lead to their death.
243.
Likewise, according to the facts presented, 41 identified persons lost their
life. From the analysis of the autopsy certificates it can be concluded that the
majority of the victims presented between 3 and 12 bullet wounds to the head and
thorax (supra para. 197(39). Similarly from the physical exams performed by the
expert José Quiroga, who describes the wounds of 13 of the survivors, it can be
concluded that at least 4 people present wounds from firearms in parts of the body
where one can assume that the result of the shot would be death, such as the head,
neck, and thorax. For these reasons, among others, it can be concluded that the
shots fired by the police agents did not seek to immobilize or persuade the inmates,
but instead cause an irreparable damage t the lives of said people.
244. In the present case the police forces, in a attitude coherent with the purpose
of the “Operative Transfer 1”, did not make any effort to use other means different
to the use of lethal force (supra para. 216); thus, rejecting the offer of intervention
made by the International Red Cross, the Inter-American Commission on Human
Rights, the Episcopal Commission for Social Action, and the National Human Rights
Coordinator.
al. Judgment of June 21, 2002. Series C No. 94, para. 217; Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human
Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 67.
138
Cfr. Case of Bulacio. Judgment of September 18, 2003. Series C No. 100, para. 124; Case of
Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 86; Case of Yare I and Yare II
Capital Regional Penitenciary Center. Provisional Measures, supra note 125, Tenth whereas, and Monagas
Judicial Confinement Center (La Pica). Provisional Measures, supra note 125, Seventeenth whereas; and
Case of Urso Branco Prison. Provisional Measures. Ruling of the Inter-American Court of Human Rights of
April 22, 2004, Tenth whereas.
139
Cfr. Case of the Caracazo. Reparations, supra note 137, para. 127; Case of Durand et al..
Judgment of August 16, 2000. Series C No. 68, para. 68; and Case of Neira Alegría et al., supra note 136,
para. 74.