Rafael Malpica Calzadilla in preventive detentionand to arrest him.207The IACHR does not have supporting
documentary evidence regarding the rest of the proceedings conducted in 2013 and 2014, to the effect that
the State took any measures to execute the arrest warrants. The latest information available about this case
was provided by the petitioner in his submission of January 26, 2014, reporting that, as of that date, the arrest
warrant had not been executed.
V.
LEGAL ANALYSIS
133.
The main dispute in the instant case involves the circumstances in which the death of Johan
Alexis Ortiz Hernandez came about. The petitioners claim that the death of the alleged victim was the result
of the doings of State agents and was intentional, while thus far a number of pieces of evidence have not been
elucidated nor disprovenby means of the investigation or judicial proceeding. They contend, in any case, that
the use of live ammunition during a combat training exercise in which such use is not stipulated, in and of
itself gives rise to the State’s responsibility for the death of Mr. Ortiz. In response, the State has not
introduced before the IACHR any specific arguments on this claim, but based on the foregoing findings of fact,
even though the domestic authoritiesraised several different theories, all of them revolve around the death
being an “accident” or an act of “negligence.”
134.
In this regard, the Commission recalls that international human rights protection must not
be confused with criminal justice. It is not the purpose of international human rights law to impose
punishment on those persons guilty of violations thereof, but rather to protect the victims, establish States’
potential responsibility and provide for reparation of any damages, which may have been caused to them by
conduct attributable to the State.208
135.
Accordingly, it is not the job of the IACHR to determine whether or notthere has been
individual criminal liability of public officials for the death of the alleged victim, but rather to assess based on
available information and in keeping with obligations under the American Convention, and the applicable rule
of the burden of proof, whether the actions displayed by said agents involved international responsibility of
the State.
136.
Hereafter, the Commission will first determine whether the investigation conducted by the
State and the judicial proceeding –which has still not reached its final conclusion- has upheld the right to a
fair trial and judicial protection. Secondly, the Commission will assess whether this incident is attributable to
the Venezuelan State in view of the established facts, the context in which the death of the alleged victim came
about, and the way in which the investigation was conducted. Thirdly, the IACHR will examine the right to
humane treatment in terms of what Mr. Ortiz experienced just prior to his death, and the investigations into
these events. Lastly, the IACHR will analyze whether the right to humane treatment of the next-of-kin of
Johan Ortiz Hernandez was violated by the State of Venezuela.
A.
The right to a fair trial and judicial protection with respect to the investigation and
proceeding instituted over the death of Johan Alexis Ortiz Hernández
137.
Guided bythe consistent legal precedent of the Inter-American Court of Human Rights
(hereinafter “the Inter-American Court” or “the Court”), it is possible to draw a conclusion as to whether the
State upheld its duty to ensure the substantive rights protected under the Convention by examining the rights
enshrined in Articles 8 (fair trial) and 25 (judicial protection) of the Convention. Additionally, these
[… continuation]
206Annex 128. Certificate of Notification of July 18, 2013. Case SP21-P-2010-004926. Acting State Criminal Trial Court of
Control of San Cristóbal. Annex to petitioners’ submission of July 24, 2013.
207Annex 125. Notice of postponement of hearing with request to execute arrest warrant of August 19, 2013. Case SP21-P2010-004926. Acting State Criminal Trial Court of Control of San Cristóbal. Annex to petitioners’ submission of September 20, 2013.
para. 134.
208See:
I/A Court H.R. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment June 26, 1987. Series C No. 1,