[…] in keeping with the importance of Article 2 [right to life] in a democratic society, the
Court must subject allegations of a breach of this provision to the most careful scrutiny,
taking into consideration not only the actions of the agents of the State who actually
administered the force but also all the surrounding circumstances, including such matters as
the planning and control of the actions under examination ... . In [this] connection, police
officers should not be left in a vacuum when performing their duties, whether in the context
of a prepared operation or a spontaneous chase of a person perceived to be dangerous: a
legal and administrative framework should define the limited circumstances in which ...
officials may use force and firearms, in the light of the international standards which have
been developed in this respect.153
172.
In the instant case, with regard to the standards that govern operations of this type, the State
forwarded copies of the Police Criminal Code and the Disciplinary Rules of the National Police. However, the
aforesaid information does not disclose clear criteria that would be applicable to the use of force by the
police, or rules on the different types of firearms and ammunition that should have been used in carrying out
the instructions that were received for the operation executed. In addition, the State did not provide any
information about the existence of supervision or control protocols for operations in which force might
legitimately be used, or about training provided to its police on the "use of force.” Neither are there any
references to elements of this nature in the judicial inquiry.
173.
Thus, in the absence of clear rules on the use of force and of a minimal operational plan on
such critical aspects as the type of firearms that should be carried full achieving the purpose of said operation,
the Commission notes that in the instant case Lieutenant Cabezas took with him a "Ruger rifle," while the
policeman Piedra was carrying a “glock” pistol, rather than firearms previously recognized as fit for the
requirements demanded by the proportionate use of force. The ignorance of the suitability of weapons of this
type for operations of this nature was evinced by the fact that National Policeman Luis Alfredo Verdezoto
Rodríguez asked the policeman Cabezas, “Why are you taking my rifle?” after he snatched it from him from
behind, and then offered no reply.
174.
In this context, the Commission considers that the lack of regulation, planning, and control,
created the right climate for the policemen involved in the operation to engage in improper and excessive use
of force.
2.
Deployment of the police operation and use of force
175.
On this point, the Commission will examine the use of force in the framework of the police
operation. According to the available information, which has not been contested by the parties, after Mr.
Valencia shot Captain Joofre Venegas and Corporal Luis Lema and then took flight, Lieutenant Colonel Juan
Ávila Hidalgo sent the duty patrol cars and a police pickup truck to track down Mr. Valencia and bring him
back to the police station. The police report confirms that the order was “to search all the places where it was
thought that he might be found.” The Commission considers that bearing in mind that Mr. Valencia had shot
two policemen and was on the run carrying a firearm, the order given by Lieutenant [sic] Ávila Hidalgo was
consistent with the legitimate and necessary security functions of the police.
176.
Having said that, the Commission notes that the accounts offered by the policemen Cabezas
and Piedra as to the manner in which the operation was deployed differ from those of the other persons who
witnessed it. According to the account of the two policemen, after looking for Mr. Valencia at his home and
then finding him in the "security guard’s quarters” of a sports facility, they told him to surrender and give up
the revolver, which he refused, saying that "if [they] approached he would kill [them] and that the only way
they would get him out of there was dead." According to the policeman Luis Piedra, "it was then that the now
153ECHR,
Case of Makaratzis v. Greece. Application No. 50385/99/95, 20 December 2004, § 59.