state agents,207 the aforementioned information that agents of the state took part in the attack along with
paramilitaries is consistent with descriptions of the context in Aguachica at the time of the events, which the
State has offered no evidence to counter. The State has merely indicated that at the domestic level the deed
was declared a crime "against humanity,” without providing a copy of the record of the inquiry by which to
determine which persons are currently under investigation. This information is not suitable for controverting
the multiple instances of circumstantial evidence pointing to a context of collaboration that is consistent with
the information available on this case.
142.
Based on its analysis, the Commission finds that at the time of the attack on Erminson
Sepúlveda the State had taken no effective steps to protect his life against the specific and imminent risk that
he reported days earlier to state agents. On the contrary, as far as the Commission can determine, there is
information to suggest that those agents engaged in omissions that, given the context in which they occurred,
could be construed as being intended to make it easier for the attack to be carried out. The Commission also
finds that it has been proven in this case that there was a context of collaboration between agents of the State
and the paramilitary group responsible for the attack, in addition to the fact that some of the individuals
named as the perpetrators of the deed were identified as agents of the State. Based on the foregoing, the
Commission concludes that, for the purposes of its international responsibility, there are sufficient elements
to conclude that the obligation to respect and ensure rights was breached in this case and, therefore, the
attack with firearms in which Mr. Omeara Carrascal was seriously wounded is attributable to the State.
iii)
As to Whether As a Result of the Attack and Its Consequences There Was a Violation of
the Right to Life
143.
As regards the right to life, the Commission recalls that the Inter-American Court has
recognized the violation of this right in respect of individuals who were not killed as a consequence of
violating acts but happened, by chance, to survive.208 That jurisprudence is consistent with that of the
European Court of Human Rights in the case of Acar and Others v. Turkey, in which armed municipal guards
stopped two vehicles, made their 15 occupants get out, ordered them to form a line on the road, and shot
them. Six of them died and nine were injured. The European Court found that they were victims of behavior
that, due to its nature, represented a serious risk to their lives despite the fact that they survived the attack.209
In addition, in the case of Makaratizsis v. Greece, the Court established that:
the degree and type of force used and the intention or aim behind the use of force may, among
other factors, be relevant in assessing whether in a particular case the State agents’ actions in
inflicting injury short of death are such as to bring the facts within the scope of the safeguard
afforded by Article 2 of the Convention. In the light of the above circumstances, and in
particular the degree and type of force used, the Court concludes that, irrespective of whether
or not the police actually intended to kill him, the applicant was the victim of conduct which,
by its very nature, put his life at risk, even though, in the event, he survived. Article 2 is thus
applicable in the instant case.210
144.
Bearing in mind the aforementioned standards, the Commission considers that the way in
which the operation on January 28, 1995 [Tr: sic], was carried out, that is, a deliberate attack with firearms in
which Noel Emiro Omeara Carrascal had no possibility of escape and survived by chance, leads it to conclude
that the State is responsible for violation of his right to life. The Commission stresses that this conclusion is
irrespective of whether or not a causal link can be proved between his injuries and his death months
afterward. Having said that, the Commission notes that, in any event, the evidence collected at the domestic
level suggests that such a causality did exist.
State’s brief of July 13, 2012, received on July 16, 2012.
. I/A Court H.R., Case of the Rochela Massacre Judgment of May 11, 2007. Series C No. 163, par. 127.
209Cf. Eur.C.H.R., Acar and Others v. Turkey, Judgment of 24 May 2005, App. Nos. 36088/97 and 38417/97, para. 77.
210 Cf. Eur.C.H.R., Makaratzis v. Greece [GC], Judgment of 20 December 2004, App. No. 50385/99, paras. 51 and 55.
207
208Cf
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