Confirmed conviction of an ESMAD agent for the death of a student in the midst of protests

On the afternoon of May 1, 2005, in the midst of a social protest, the 15-year-old Nicolás Neira was hit in his head by a tear gas projectile, causing serious injuries, resulting in his life five days later. The agent of the Mobile Anti-Riot Squadron who fired the shot was Agent Nestor Julio Rodríguez. It took almost 16 years for the judicial process to be resolved.

The Bogotá High Court held firm the conviction against the Esmad patrolman for the murder of Nicolás Neira. The 18th Criminal Judge of Knowledge of Bogotá had sentenced him to 17 years and four months in prison. The high court decided in the second instance the appeals of the defence of the defendant, which sought to declare the proceedings null and void because it considered the lack of competence of the ordinary justice system and an alleged violation of due process and defense.

According to legal medicine, the projectile fired by Agent Néstor Julio Rodríguez was made in a linear and direct manner at the time of hitting the head of the 15-year-old protester, who lost his life five days later in a health care center due to a craniocerebral trauma.

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“An adult is able to understand that if he shoots a firearm directly into a crowd, it is quite possible that he will kill a person or seriously injure him. In order for such a person to realize this he does not need specialized courses. If this happens with an adult, it happens more so with an agent of the National Police, since he is trained to handle firearms and to know the consequences of operating such an element”, assured the magistrate of the High Court of Bogotá.

It is important to note that Nicolás Neira, who was then a student at the Hermano Miguel Lyceum, was demonstrating with some family and friends in the protests for Workers Day in the seventh race with 19th street when the Esmad agent shot him at less than six meters, causing serious injuries. Some witnesses to what happened say that Nestor Rodríguez mocked the student for having survived the impact.

After these events, the Esmad agent reportedly asked his colleagues to change the version of the events, so that they would state that the injury suffered by the 15-year-old was not the result of a shell, but that he hit his head with a platform in the middle of the revolts with the uniformed men, this in order to present the case as a accident. This decision was endorsed by some Esmad superiors, who gave precise instructions for the investigation to be diverted.

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This version was not sustainable to the researchers, who determined the true cause of death after conducting ballistics tests that determined that Nicolás Neira lost his life was due to the impact of the projectile that was fired at close range. Now, the patrolman's defense insisted on moving the case from the ordinary justice to the military criminal justice system, something that was dismissed by the high court who gave the example of the recent Dilan Cruz case.

“In the SU-190 judgment of 2021, that corporation ordered that the criminal proceedings against the national police officer be transferred to ordinary jurisdiction. As can be seen, the situation is clear, not only is there a decision, but there is a unified judgment of the Constitutional Court that reaffirms that criterion,” said Judge José Joaquín Urbano.

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