176.
As to the reasonable period of time criterion, the State failed to submit arguments justifying
the delay of a judicial proceeding that had still not reached at its final conclusion or the formal trial phase.
Furthermore, in the instant case, only one individual was involved whose identity had been established from
the outset, the facts were immediately known to the State, and the military personnel present during the
training exercise could be identified the day the incident took place. In addition, the respective authorities
had free access to the scene of the incident and the opportunity to perform all the relevant forensic tests.
Given these circumstances, the Commission does not consider this case to be particularly complex.
177.
As to the conduct of the judicial authorities, since the initial stage of the proceedings the
State has been in a position to obtain the evidence, or else, order the necessary tests to shed light on the
events. Hence, the failure to elucidate the events and to investigate and punish the parties responsible is due
to the aforementioned negligence and omissions of the authorities charged with meeting this objective. The
investigation was not initially conducted by independent and impartial authorities, and during the judicial
proceedings in the special jurisdiction, the cause was the State’s zero lack of response on various occasions,
and it was only in 2003 that the Seventh Office of the Prosecutor launched an investigation in the civil courts.
178.
As to the activity in the civil courts, the proceedings have been marked by undue delays
attributable to the authorities. Lengthy periods of inactivity are observed; thus, since the Constitutional
Chamber ordered the transfer of the proceedings to the civil courts it has taken a year to launch the
investigation, five years to obtain a copy of the log book of incidents and the operations order for the First
Anti-subversive Course, and ten years for the Office of the Prosecutor to file charges. Moreover, there were
delays in performing vitally important tests once the investigation was under way, irregularities related to
changes in the personnel and prosecutors assigned to the investigation, lack of response to motions by the
next of kin of Johan Alexis, and in general, ten years in which the proceedings remained in the preliminary
stage without reasonable justification. This situation even led to action by other authorities such as the Office
of the Ombudsman, which through many avenues expressed its concern about the unjustified delay in the
proceedings, and the Fifth Court, which gave the Ministry of Public Prosecution 120 days to issue a final
document. Finally, the San Cristóbal Court of First Instance recognized the lack of a “comprehensive
investigation,” leading it in 2012 to vacate the charging document issued by the Ministry of Public
Prosecution, with the consequent additional delays.
179.
Following the issuance of a new charging document by the Office of the Prosecutor in 2013,
the preliminary hearing has been postponed on at least four occasions because the arrest warrant for the only
individual accused has not been produced. Moreover, after the numerous postponements of the preliminary
hearing granted in 2012, due largely to this individual’s failure to appear, when the hearing was finally held,
this situation resulted in the decree of alternative precautionary measures by the Court of Control. In this
regard, the case file contains no information on efforts by the State to guarantee the appearance of the
accused.
180.
In the circumstances of a violent death, the IACHR has consistently asserted that the
responsibility for moving a proceeding forward lies with the State. In any case, concerning the family’s
activities with respect to the judicial proceedings, the petitioners have actively participated in the process
since February 15, 1998, pushing it forward, offering their version of the events, providing relevant elements
and information obtained through their own inquiries, and in general taking the legal action available to them
to learn the truth about what happened.
181.
In light of all this, the Commission concludes that the State did not fulfill its obligation to
conduct a diligent, impartial investigation into the death of Johan Alexis Ortiz Hernández within a reasonable
period of time. This implies that his family was deprived of an effective legal remedy that would establish the
truth of the events, punish the material and intellectual authors, and provide adequate reparations. The State
is therefore responsible for the violation of Articles 8 and 25 of the Convention.
A.
The right to life