27
91.
It is appropriate to analyze the facts of the instant case in the light of the aforementioned
criteria, starting with the objectives defined by the State with regards to the actual use of lethal
force in the instant case.
92.
In the first place, the State pointed out that at the time of the operation, the three alleged
victims, “who had criminal records and [had committed] a great number of assaults mostly in the
city of Guayaquil, and who were members of a foreign drug dealers network[,] died in their
attempt to repel the authority”. In this regard, the representatives asserted that it is false to say
that the alleged victims were dangerous criminal and members of an organized criminal group and
presented to that effect a certificate from the National Direction of the Judicial Police and
Investigations, which certifies that three criminal proceedings had been opened against Wilmer
Zambrano Vélez between 1984 and 1989 and that Messrs. Caicedo Cobeña did not have any
criminal records.
93.
In its ruling in other cases, the Court has pointed out that it is not a criminal court which
can analyze the criminal responsibility of individuals81. This applies to the instant case, which does
not concern the innocence or guilt of Mr. Zambrano, Mr. Caicedo Cobeña and Mr. Caicedo Cobeña,
but rather the conformity of the acts of state agents with the American Convention, regarding the
deprivation of the life of these alleged victims.
94.
As laid down in the previous chapter (supra paras. 42-71), the decree-law establishing the
state of emergency did not set any geographical, time and material limits to the suspension of
guarantees “to the extent and for the period of time strictly required by the exigencies of the
situation”. The Court considers that once it has been established that a military intervention with
such a wide scope and depending on purposes as broad and vague has been carried out (supra
paras. 48-52), and that the specific objectives of the March 6, 1993 operation have been set in
such general terms (“to arrest criminals, drug dealers and terrorists”) (supra para. 74), the
planning of an intervention of such a magnitude can end up to be so difficult as to render
ineffective the appropriate security measures which can reasonably be planned to prevent and
protect life and other guarantees which can not be suspended. Moreover, it makes it practically
impossible to carry out an appropriate control and verification of the legality of the use of force in
the instant case (supra paras. 83-90), especially concerning the criteria of exceptionality, necessity
and proportionality, since this examination must depend strictly on the specific objectives,
considering the circumstances of a particular situation. It is now appropriate to determine how the
aforementioned considerations affected the specific circumstances in which the alleged victims
were deprived of their life.
95.
The representatives alleged that “information gathered by national and international human
rights organisms […] demonstrate a modus operandi of the security forces[:] when they
extrajudicially execute individuals, they always say that it occurred during a confrontation or that
the alleged criminal tried to escape”. Those arguments have not been proven. In this regard, the
State alleged that what did exist at that time was “a context of alarming insecurity, increasing
violence and citizen concern”. Besides, the operation was justified by the joint command of the
Ecuadorian Armed Forces in consideration of its duty to protect “the domestic security of the
[N]ation” and “to fight those elements who seek to alter the citizen peace”, and was motivated by
“the request from the citizens, medias and public opinion generally that the Armed Force intervene
in view of the incontrollable growth of criminal activities” (supra paras. 74).
Cf. Case of Suárez Rosero. Judgment of November 12, 1997. Series C No. 35, para. 37. See also Case of the
Pueblo Bello Massacre, supra note 61, para. 122; Case of Fermín Ramírez, supra note 42, para. 63, and Case of RaxcacóReyes, supra note 44, para. 55.
81