CONCURRING OPINION OF JUDGE EDUARDO FERRER MAC-GREGOR POISOT AND JUDGE ELIZABETH ODIO BENITO CASE OF DÍAZ LORETO ET AL. V. VENEZUELA JUDGMENT OF NOVEMBER 19, 2019 (Preliminary objections, merits, reparations and costs) INTRODUCTION 1. Starting with its first contentious case, the Inter-American Court of Human Rights (hereinafter “the IACtHR” or “the Inter-American Court”) has used the “context” as a fundamental element to assess the facts submitted to its consideration and eventually determine the international responsibility of a State.1 In this specific case, both the InterAmerican Commission on Human Rights (in the Merits Report) and the victims’ representatives (in their brief with pleadings, motions and evidence), have referred extensively to the context of “extrajudicial executions” in Venezuela and, above all, in Aragua state, at the time of the deaths of the victims in this case. The State did not contest this context. 2. In the judgment in the Case of Díaz Loreto et al. v. Venezuela (hereinafter “the judgment”),2 the Inter-American Court addresses this “context” twice. First, in the chapter on “Facts,”3 and then in a special section when examining the “Merits” of the case.4 The judgment concludes, inter alia, that “the State is responsible for the violation of the right to life contained in Article 4 of the American Convention to the detriment of Robert Ignacio Díaz Loreto, David Octavio Díaz Loreto, and Octavio Ignacio Díaz Álvarez.”5 3. We, the undersigned, are in full agreement with this. However, we consider that the deaths of the three members of the Díaz family constitute “extrajudicial executions” and, therefore, this situation should have been explicitly concluded in the judgment. This is because special consideration should have been given to the fact that the factual framework in which the events of this case took place, coincides, essentially, with the proven context and modus operandi of the state agents, which – in our opinion – should have been assessed together with the other indications and presumptions (see infra, para. 30), especially when the State’s version of the supposed “confrontation” between the victims and the agents contains a “series of contradictions and inconsistencies,” as extensively emphasized in the judgment.6 1 Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4. Cf. Case of Díaz Loreto et al. v. Venezuela. Preliminary objections, merits, reparations and costs. Judgment of November 19, 2019. Series C No. 392. 2 3 Paras. 29 to 33 of the judgment. 4 Paras. 63 to 65 of the judgment. Cf. Case of Díaz Loreto et al. v. Venezuela. Preliminary objections, merits, reparations and costs. Judgment of November 19, 2019, para. 87. See also, the second operative paragraph of the judgment: “2. The State is responsible for the violation of the obligation to respect and ensure the right to life recognized in Article 4 of the American Convention on Human Rights […].” 5 In this regard, see the section entitled “Analysis of the evidence related to the alleged confrontations” in which numerous inconsistencies in the State’s version of the supposed “confrontation” are described. Case 6