Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, VENEZUELA (BOLIVARIAN REPUBLIC OF); [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.25-15878 (E) 011225 011225
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 3053/2017*, **, ***
Communication submitted by:
Leopoldo Eduardo López Mendoza and Lilian
Adriana Tintori Parra (represented by Carlos
Ayala Corao, Bernardo Pulido Márquez and Juan
Carlos Gutiérrez)
Alleged victims:
The authors and their two minor children,
M.R.L.T. and L.S.L.T.
State Party:
Bolivarian Republic of Venezuela
Date of communication:
24 August 2017 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 27 November 2017 (not issued
in document form)
Date of adoption of Views:
14 July 2025
Subject matter:
Arbitrary arrest and conviction of political
dissidents
Procedural issues:
Examination under another international
procedure; exhaustion of domestic remedies
Substantive issues:
Right to an effective remedy; integrity of the
person; liberty and security of person; freedom
of expression; right of peaceful assembly
Articles of the Covenant:
2 (3), 7, 9, 10, 14, 19 and 25
Articles of the Optional Protocol:
2, 3 and 5 (2)
* Adopted by the Committee at its 144th session (23 June–17 July 2025).
** The following members of the Committee participated in the examination of the communication:
Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders, Carlos Ramón Fernández
Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye, Hernán Quezada
Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Teraya Koji, Hélène Tigroudja and Imeru
Tamerat Yigezu.
*** Three opinions signed by the following four Committee members are annexed to the present Views:
Hélène Tigroudja (partially dissenting), Rodrigo A. Carazo (partially concurring) and Hernán
Quezada Cabrera and Wafaa Ashraf Moharram Bassim (concurring).
United Nations
CCPR/C/144/D/3053/2017
International Covenant on
Civil and Political Rights
Distr.: General
21 November 2025
English
Original: Spanish
CCPR/C/144/D/3053/2017
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1.
The authors of the communication are Leopoldo Eduardo López Mendoza, born on
29 April 1971, and his wife Lilian Adriana Tintori Parra, nationals of the Bolivarian Republic
of Venezuela. They are acting on their own behalf and on behalf of their two minor children,
M.R.L.T. and L.S.L.T. They claim that the State Party has violated their rights under article 7
of the Covenant, read alone and in conjunction with article 2 (3). In addition, Mr. López
Mendoza alleges violations of his rights under articles 9, 10, 14, 19 and 25. The authors are
represented by counsel. The Optional Protocol entered into force for the State Party on
10 August 1978.
Facts as submitted by the authors
Context
2.1
Mr. López Mendoza, founder of the political party Voluntad Popular, claims that he
faces political persecution because of his opposition to the Government. He notes that there
have been 27 administrative and criminal proceedings against him seeking to deprive him of
his political rights, the most serious relating to his nine-year disqualification by the Office of
the Comptroller General of the Republic. On the basis of these facts, the Inter-American
Court of Human Rights issued a judgment in his favour.1
2.2
Following the presidential election of 14 April 2013, won by Nicolás Maduro,
Mr. López Mendoza – believing that election results were fraudulent – launched a movement
called La Salida (The Way Out), to “affirm, in the face of oppression, the principle that
peoples have rights against a Government that seeks to rule through imposition,
authoritarianism, the undermining of democracy, corruption and inefficiency”.
2.3
On 12 February 2014, a student demonstration held in connection with that movement
was suppressed by members of the Bolivarian National Intelligence Service, resulting in the
deaths of three people.
Arrest
2.4
The same day, the Public Prosecution Service sought the arrest of Mr. López Mendoza
for “an unheard of and completely unjustified number of offences”: criminal association and
incitement, public intimidation, setting fire to a public building, damage to public property,
serious injury, intentional killing and terrorism.
2.5
On 16 February 2014, officers with the Bolivarian National Guard and the Directorate
General of Military Counter-Intelligence entered his home, allegedly without a search
warrant.
2.6
In a video posted on YouTube, Mr. López Mendoza called a demonstration in front
of the offices of the Ministry of People’s Power for Internal Relations, Justice and Peace on
18 February 2014. That day, at around noon, he gave a speech and turned himself in to the
security forces. He was transferred to the National Centre for Military Detainees.
Trial proceedings
2.7
On 19 February 2014, at Mr. López Mendoza’s initial court appearance, the custodial
measure was affirmed.
2.8
On 4 April 2014, the Public Prosecution Service brought charges against Mr. López
Mendoza as the instigator of and mastermind behind several offences. Four students were
included in the case as the perpetrators. According to the Public Prosecution Service,
Mr. López Mendoza “intentionally, by his speech, incites his followers to take to the streets
and defy the laws, the Government and the institutions of the State”.
2.9
On 23 July 2014, the oral proceedings commenced. They lasted more than 13 months,
with 70 hearings being held and 108 witnesses being heard.
1 Inter-American Court of Human Rights, López Mendoza v. Venezuela, Judgment, 1 September 2011.
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2.10
On 10 September 2015, Mr. López Mendoza was sentenced to a term of imprisonment
of 13 years, 9 months, 7 days and 12 hours for public incitement, property damage, arson and
criminal association.
2.11
On 16 October 2015, Mr. López Mendoza filed an appeal. On 12 August 2016, the
appellate court upheld the judgment at first instance.
2.12
Mr. López Mendoza filed an appeal in cassation, which was declared inadmissible on
16 February 2017.
Alternative to deprivation of liberty
2.13
On 7 July 2017, house arrest (with an electronic ankle monitor and surveillance by
officers of the Bolivarian National Intelligence Service) was ordered as an alternative to
deprivation of liberty.
2.14
On 1 August 2017, the court revoked the order of house arrest because of an alleged
plan to escape. After four days in prison, Mr. López Mendoza was again transferred to his
residence, which is where he was when the communication was submitted.
Admissibility
2.15
The authors argue that, although they have turned to the Working Group on Arbitrary
Detention, which concluded that Mr. López Mendoza’s detention constituted arbitrary
detention, 2 and the Inter-American Commission on Human Rights, which granted
precautionary measures to preserve and safeguard his life and personal safety, 3 the
communication is admissible, given that the Working Group on Arbitrary Detention is a
special procedure and not treaty-based and the precautionary measures of the Inter-American
Commission on Human Rights are stand-alone measures, given that, as no contentious case
was filed, there has been no consideration of the merits.
2.16
The authors claim that they have exhausted domestic remedies, in relation both to
Mr. López Mendoza’s arbitrary conviction and conditions of detention and to the treatment
received by his wife and children in prison (see para. 3.3 below).
Complaint
Article 7
3.1
Mr. López Mendoza claims that his rights under article 7 of the Covenant were
violated owing to his conditions of detention (for the first four months of his detention, he
had no access to natural light because a panel that had been placed in the window of his cell
blocked the passage of the light).
3.2
He also complains of his treatment by prison staff. On 25 October 2014, they threw
urine and excrement through the window of his cell in retaliation for his having said that he
was protesting and for his banging on the bars of his cell, every day at 8 p.m., to “make a lot
of noise and address the prison population about justice and respect for rights”. They also
intentionally disturbed his sleep the nights before his hearings. He was, furthermore,
threatened with death by Sergeant Corredor,4 who said to another prisoner, “We have to kill
him; we can’t let him get there – I’m even willing to do it myself”, a fact that he reported on
20 July 2016.
3.3
He also alleges psychological torture owing to the treatment received by his three
family members at the prison. Ms. Tintori Parra claims that she was subjected to excessive,
arbitrary, intrusive searches and was stripped naked against her will under threat of losing
her visiting rights if she did not comply. On 17 January 2016, they checked the sanitary
napkin that she was using. These incidents were reported, and the public prosecutor’s office
ordered protection and security measures on 21 January 2016. In addition, on 8 May 2016,
2 Working Group on Arbitrary Detention, opinion No. 26/2014, para. 60.
3 Inter-American Commission on Human Rights, resolutions 12/2015, para. 25, and 35/2015, para. 21.
4 Sergeant Carrero, according to the complaint filed internally.
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Ms. Tintori Parra received the following message: “Be careful, now they’re going to
physically eliminate you guys”. On 5 March 2017, when they left the prison, she and her two
children were pursued by four motorcycles and an unmarked car, causing her children to
scream in fear.
Article 9
3.4
Mr. López Mendoza also claims that his arrest was arbitrary because it was ordered
for an unheard of and unjustified number of offences, in the context of a legitimate exercise
of his right to freedom of expression, recalling that the Working Group on Arbitrary
Detention found his detention to be arbitrary (see para. 2.15 above).
Article 10
3.5
Mr. López Mendoza alleges a violation of article 10 of the Covenant because of the
prolonged solitary confinement to which he was subjected. To punish him for being a
dissident, he was placed in full isolation on 20 occasions – for a total of nine months –without
access to visitors or telephone calls. The penalty was never preceded by a formal procedure.
Article 14
3.6
Mr. López Mendoza alleges that his initial court appearance was irregular, as it took
place outside the court’s territorial jurisdiction, in a bus called a “mobile court”, within the
security perimeter of the prison.
3.7
He also alleges that his right to be heard by an independent and impartial judge was
violated, as the judges and prosecutors who took part in his case were temporary or
provisional officials appointed on a discretionary basis for political reasons, and the judges
who heard his appeal in cassation had been chosen “because they were sympathetic to the
Government in power”.
3.8
He also alleges a violation of the presumption of innocence because of the public
statements of high-ranking officials who prejudged his case and said that he was guilty before
he was convicted. In particular, Nicolás Maduro described Mr. López Mendoza as being part
of a group of “right-wing fascists sowing the seeds of fear and violence” and, on the night of
12 February 2014, said: “I say to these fugitives from justice: Give yourselves up! You should
be behind bars.” He also stated: “López ordered the street to be burned, and where is he? In
prison, like I said.” Furthermore, the then Minister for Foreign Affairs, Elías Jaua, said that
Mr. López Mendoza was responsible for the acts of violence. These statements had an impact
not only on public opinion, but also on the provisional judges who convicted Mr. López
Mendoza.
3.9
Mr. López Mendoza also alleges a violation of the principle of publicity, as the public
did not have access to various hearings. The significant restrictions imposed by the security
forces prevented the entry of citizens, lawyers, law students, representatives of political
parties and friends.
3.10
He also alleges the arbitrary exclusion of evidence, including statements from students
asserting that they alone were responsible for the violence of 12 February 2014. In addition,
it was not taken into account that a prosecutor fled the country after the judgment at first
instance and stated, in the United States of America, that he had been coerced into fabricating
evidence: “I decided to leave Venezuela with my family because of the pressure being exerted
by the executive branch and my superiors for me to continue to support the false evidence on
which Leopoldo López had been convicted”.5 Nor was account taken of the report by a media
outlet that a linguistics expert had retracted in the press the statement that she had made in
court.
3.11
Mr. López Mendoza also alleges a violation of his right to a defence during the
appellate proceedings because of the denial of the request by former Spanish Minister of
5 See https://lapatilla.com/2015/10/26/la-confesion-del-fiscal-franklin-nieves/.
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Justice Alberto Ruiz-Gallardón, who had travelled to the Bolivarian Republic of Venezuela,
to join his defence team.
3.12
Lastly, Mr. López Mendoza claims that there was an insufficient basis for the
judgment, as the time, place and manner in which he coerced others to commit offences were
not indicated.
Article 19
3.13
Mr. López Mendoza also alleges the criminalization of expressions of criticism of the
Government. The State Party convicted and “detained him arbitrarily for the mere expression
of his ideas and thoughts, wrongly characterizing and inferring from those expressions” that
they were intended to cause other people to damage public buildings. The circumstances of
how, where or when Mr. López Mendoza might have influenced the commission of an
offence through his alleged statements are not specified.6
Article 25
3.14
Finally, Mr. López Mendoza alleges that he was deprived of his political rights
without any reasoning, justification, grounds or rationality.
Reparation
3.15
The authors request that the Committee order the State Party to: (a) compensate them
for the harm they have suffered and reimburse them for their legal fees and expenses;
(b) vacate Mr. López Mendoza’s conviction and order his release; (c) restore his political
rights; (d) hold an independent and impartial trial with respect to the acts of torture and cruel,
inhuman and degrading treatment that Mr. López Mendoza was subjected to in prison; and
(e) promote human rights training for prosecutors, judges and prison guards.
State Party’s observations on admissibility
4.1
In its observations of 23 June 2020, the State Party argues that the communication is
inadmissible on the grounds that the matter has already been examined by other international
bodies, pointing to decision 104 EX/3.3 of 5 June 2015 of the United Nations Educational,
Scientific and Cultural Organization (UNESCO), based on a complaint from Mr. López
Mendoza regarding alleged violations of his right to freedom of expression, judicial
guarantees and right to political participation.
4.2
It also argues that the communication is inadmissible for failure to exhaust domestic
remedies in relation to the alleged violation of the right of Ms. Tintori Parra and her children
to integrity of the person, as no information was provided on the outcome of the complaints.
4.3
Thirdly, it argues that the claims regarding liberty of person and judicial guarantees
are inadmissible because they have not been substantiated, with the authors merely having
expressed their disagreement with the judgments of the domestic courts and seeking to have
the Committee act as a court of fourth instance.
4.4
Finally, the State Party reports that Mr. López Mendoza is a fugitive from justice. On
30 April 2019, he violated the terms of his house arrest in order to take part in an unsuccessful
coup d’état with a group of soldiers equipped with weapons of war.7 Following the failure of
the coup d’état, he entered the residence of the Spanish ambassador in Caracas. On 2 May
2019, the court revoked the order of house arrest, issued an arrest warrant and ordered that,
once arrested, he serve the remainder of his sentence at the National Centre for Military
Detainees.
6 Working Group on Arbitrary Detention, opinion No. 26/2014, para. 39.
7 See https://www.bbc.com/mundo/noticias-america-latina-48106547.
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Authors’ comments on the State Party’s observations on admissibility
5.1
On 23 February 2022, the authors asserted that the complaints procedure before the
Committee on Conventions and Recommendations of the Executive Board of UNESCO does
not constitute a procedure of international investigation or settlement.
5.2
The authors state that they exhausted the domestic remedies available in relation to
the treatment received by Ms. Tintori Parra and their children, but they were ineffective.
5.3
In relation to the alleged lack of substantiation, they assert that what they seek through
their communication is an acknowledgement of international responsibility for their political
persecution.
5.4
As to the supervening events, the authors claim that after the officials who were
holding Mr. López Mendoza under house arrest released him, he participated in protests in
exercise of his legitimate right to demonstrate. The so-called “attempted coup d’état” put
forward by the State Party is simply part of the government narrative; no judicial proceedings
have yet been concluded in which it has been determined that that there was such an attempt
and who was responsible.
5.5
The authors assert that Mr. López Mendoza was forced to seek refuge in diplomatic
premises and later to “escape from Venezuela” to Spain.
State Party’s observations on admissibility and the merits
Evasion of justice
6.1
On 24 August 2023, the State Party confirmed that Mr. López Mendoza had succeeded
in escaping by fleeing to Spain after the failed coup attempt (which, far from being mere
protests or simply “part of a narrative”, was in fact an attempted coup d’état, as was widely
reported by national and international media). 8 In the State Party’s view, Mr. López
Mendoza’s actions – when, as a fugitive from justice, he openly called for rebellion – can
under no circumstances be considered to be covered by the exercise of the right to
demonstrate.
6.2
The State Party specifies that, although the investigations into who was responsible
are still ongoing, it cannot be ignored that Mr. López Mendoza himself posted on social
media that he had “started the definitive phase for the end of the usurpation, Operation
Freedom”, stating that he had been “released by the military on the order of the Constitution
and President Guaidó” and adding: “Everyone mobilize. It’s time to conquer freedom.” In
addition, in the early hours of 30 April 2019, he stated: “All Venezuelans who want freedom
should come here, to be with our brave soldiers, to be with the people. The end of the
usurpation has begun.”9 Moreover, on 12 January 2023, he acknowledged that he was the key
actor: “I acknowledge what we did ... it was a process managed along two parallel tracks;
one was the military/police track, which I was responsible for leading.”10
6.3
In the State Party’s view, the subterfuges used by the author to attempt to evade
responsibility for acts that undermined peace, harmony and democratic, political and social
stability must be taken into account by the Committee.
Admissibility
6.4
The State Party argues that the lawfulness of the deprivation of liberty and of the
conviction was reviewed on at least eight occasions and that what the authors therefore seek
is for the Committee to act as a court providing an additional level of review.
8 See https://www.france24.com/es/20190430-guido-maduro-rebelion-venezuela-30a.
9 See https://www.bbc.com/mundo/noticias-america-latina-48129400.
10 APEX, “Rueda de prensa a Leopoldo López”, 13 January 2023, at 51:20–54:30, available at
https://www.youtube.com/watch?v=FAKahyzy218.
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Merits. Liberty of person
6.5
The State Party argues that the deprivation of liberty was ordered by a competent court
in the context of criminal proceedings (initiated for suspected involvement in the commission
of various criminal offences), in which Mr. López Mendoza was subsequently found guilty
(of arson, public incitement, damage to public property and criminal association), having
instigated the acts of violence of 12 February 2014 in the vicinity of the main offices of the
Public Prosecution Service, 11 where, after his speech, demonstrators set fire to official
vehicles, destroyed the plaza of Parque Carabobo and damaged the ground floor of the
building with Molotov cocktails (shattering windows, destroying the library and a security
guard’s workstation and leaving graffiti saying, for example, “the way out”, “war to the death
against the communist fraud” and “let’s burn this shit so they leave”).12
6.6
The prosecutor asked the court to issue a warrant for the arrest of Mr. López Mendoza
for his suspected involvement, as an instigator, in the offences of arson and property damage
and for his suspected involvement, as a perpetrator, in the offences of public incitement and
criminal association. The charges were duly substantiated with a detailed description,
spanning 218 pages, of the conduct alleged and the evidence.
6.7
The judge hearing the case found the request for the arrest to be well-founded and
issued arrest warrant No. 008-14.
6.8
The arrest was made on 18 February 2014, after Mr. López Mendoza, accompanied
by his lawyer, voluntarily turned himself in during a demonstration that he had called. The
opinion of the Working Group on Arbitrary Detention was based on a false premise put
forward by Mr. López Mendoza: that the arrest had been made without a warrant.
6.9
As the judge also issued search warrant No. 003-2014 for the purpose of gathering
evidence pertinent to the criminal investigation, the reports contained in the communication
of a search being carried out without judicial authorization are also false.
6.10
On 18 February 2014, Mr. López Mendoza had to be taken to court by helicopter for
his initial court appearance because the participants in a demonstration that he had called
prevented the vehicle in which he was being transported from getting through. Mr. López
Mendoza’s defence counsel requested that the hearing be postponed until the following day,
and that request was granted.
6.11
The National Centre for Military Detainees was designated as the place of detention
in order to provide Mr. López Mendoza with the maximum protection and thereby guarantee
the integrity and security of his person, given the conditions at that facility. Mr. López
Mendoza’s legal representatives repeatedly requested, both domestically and before the Inter-
American Commission on Human Rights, that the State Party refrain from transferring him
to a civilian prison. His family members made public allegations to prevent any possibility
of a transfer to a civilian facility.
Integrity of the person
6.12
There has, in addition, been no violation of Mr. López Mendoza’s right to integrity of
the person due to his conditions of detention at the National Centre for Military Detainees,
where he had an individual, private cell measuring 38.94 m² (27.61 m² for the living area and
11.33 m² for the bedroom and bathroom), with access to ventilation and natural light, a
kitchen, a refrigerator, an electric coffee maker, a television, sanitary facilities equipped with
a heater, furniture and a library (with 152 books and 144 films on DVD having been amassed).
He was able to have daily contact with other persons deprived of liberty, voluntarily
participated in sports and religious and educational activities and completed graduate level
studies.
11 The court noted that, in the months prior to the events of 12 February 2014, Mr. López Mendoza
made daily calls on social media for his 2.7 million followers to demonstrate, using the media to
amplify “messages that, as a leader, serve to establish patterns of conduct” that caused “an aggressive
attitude among his followers”. According to the court, the demonstrators “heeded the call” made by
Mr. López Mendoza and “acted upon” his speeches.
12 Judgment of conviction, pp. 257, 258, 267 and 268.
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6.13
Under the rules of the facility, persons deprived of liberty are entitled to family visits
three days a week. In Mr. López Mendoza’s case, the guaranteed visitation rights included
conjugal visits – resulting in his daughter’s conception – and he received much more
favourable treatment than other prisoners. The organization of birthday parties for his
children was authorized and facilitated, with various guests entering with prepared food,
birthday cakes and drinks. A variety of products were regularly allowed to be brought in for
his preparation and consumption.
6.14
The State Party also denies that Mr. López Mendoza was subjected to harmful conduct
by prison staff. It asks the Committee to consider that the authors have submitted several
false pieces of information, which they themselves contradicted during the domestic
proceedings. The strongest evidence of the falsity of this allegation is contained in the
statements made by Mr. López Mendoza during the hearing before the appellate court: “I
have been a prisoner at a military facility for two years and six months and have deep respect
for Venezuelan soldiers. I have had some incidents with a few but have been able to get along
with most of the soldiers, guards and prisoners”.
6.15
Lastly, the State Party argues that, in order to prevent the entry of prohibited objects,
prison authorities may carry out personal searches of visitors, including invasive, unclothed
searches (conducted in private, by staff of the same sex and with prior consent) when the
circumstances warrant it, as in the present case (the authors attempted to violate the facility’s
rules in order to bring in and take out prohibited items, as they themselves have admitted (see
para. 6.17 below)).
Article 10
6.16
The State Party argues that solitary confinement was used as a disciplinary penalty in
response to failures to comply with the facility’s rules and was ordered on the basis of the
facility’s internal regulations, the Prison System Act and the Prisons Code. Mr. López
Mendoza was notified in writing of the disciplinary measures adopted and was informed of
his right to appeal. No appeal was filed.
6.17
In the communication itself, it is acknowledged that the authors violated the prison’s
rules, with it being noted, for example, that “they managed – with great difficulty – to
circumvent security measures to remove sketches and writings by Mr. López Mendoza,
which make up the book Preso pero libre”. The penalties were aligned to the seriousness of
the infractions, ranging from confinement in his own cell for 2 to 15 days to confinement in
a punishment cell for a maximum period of 15 days. This did not involve being held
incommunicado. For example, Mr. López Mendoza was punished four times for the
possession of mobile telephones, expressly prohibited under the facility’s rules; four times
for offensive and insulting conduct toward staff; twice for posting videos recorded inside the
prison on his Twitter account, considered a very serious infraction; once for political
proselytism; once for sending correspondence clandestinely; and additionally for having
caused a disturbance at the prison.
Judicial guarantees
6.18
The State Party also argues that there was no violation of article 14, reiterating that it
is for the domestic courts to assess the facts and evidence. The criminal proceedings were
highly complex: the trial lasted 14 months because of the complexity of the case, the large
volume of evidence (123 witness and expert statements and 23 pieces of documentary
evidence were processed) and the appeals filed by the defence. The progress of the trial was
hindered between October 2014 and January 2015 owing to Mr. López Mendoza’s failure to
appear: on more than 10 occasions, hearings could not be held because of his voluntary failure
to attend, demonstrating disdain for the trial. The trial record contains 1,321 pages.
6.19
The State Party also indicates that the alleged lack of jurisdiction of the mobile court
was raised and resolved during the domestic proceedings. The fact that the court moved
outside its established seat did not cause it to lose territorial jurisdiction, which is determined
by the place where an act is committed. The establishment of a mobile court was necessary
(there were violent demonstrations in the vicinity of the courthouse). It was incumbent upon
the court to take the necessary measures to ensure that Mr. López Mendoza was brought
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before a court within 48 hours of his arrest. During the hearing, defence counsel requested a
postponement of the proceedings in order to be able to study the records that had been added
to the case file, which the court granted.
6.20
At this hearing, the court rejected the Public Prosecution Service’s initial
characterization of the three most serious offenses (intentional killing, serious injury and
terrorism), demonstrating the independence of the judiciary.
6.21
Regarding the alleged lack of impartiality of the judges and prosecutors, the authors
confine themselves to general allegations about the independence of the courts and
prosecutors in the Bolivarian Republic of Venezuela, without specifying how the actions of
the judges and prosecutors involved in the case indicated bias. An assessment of the
independence of a judge or prosecutor must be based on an analysis of his or her conduct in
a specific case. Domestic law provides for a set of remedies for challenging the impartiality
of judges; none have been pursued by the authors. All the judges who heard the case showed
no noticeable preferences at any time, with, for example, one judge sustaining objections
made by both the defence and the prosecution. It cannot be said that any decision was
rendered that was not justified on the basis of a law to the extent that can reasonably be
expected.
6.22
Regarding the alleged violation of the right to submit evidence, the State Party argues
that, contrary to what is alleged, the case file shows that the evidence submitted was partially
admitted. Regarding the allegation that no consideration was given to statements made, in
the United States of America, by a former prosecutor following the decision at first instance,
the authors filed no motion for review to challenge the alleged lack of objectivity in the
proceedings. Regarding the allegation that no consideration was given to media reports – also
following the judgment at first instance – of an alleged retraction by an expert of technical
and scientific assertions contained in her expert report and testimony at trial, the State Party
emphasizes that the appellate court, in line with Venezuelan law, which contains clear
provisions on the admissibility of evidence at second instance, ruled on the request that the
retraction be admitted as supervening evidence and found it inadmissible. 13 If, in the
defence’s view, statements made in the media after the trial – during which the expert testified
freely, without coercion and under oath – were more credible than what was stated at the trial,
it could have filed a motion for review, which it did not.
6.23
Regarding the alleged violation of the principle of publicity, the State Party affirms
that the oral proceedings were indeed public. Media access is not mandatory and is subject
to the discretion of the judge. In the present case, the court decided, with justification, not to
allow the presence of the media in order to ensure that the normal conduct of the trial would
not be hindered. The defence did not file an appeal. Furthermore, at no time did the oral
proceedings take place behind closed doors or without the presence of the public, and the
restrictions imposed by security agencies in the vicinity of the courthouse were justified for
the purpose of maintaining order and security, given the large crowds that were gathering
there daily.
6.24
The court also examined the allegation that the refusal to allow the appointment of
technical consultants constituted a restriction on the right to a defence. The applications of
non-nationals not admitted to practice in the Bolivarian Republic of Venezuela were declared
invalid for being in contravention of the country’s laws.
6.25
Regarding the alleged violation of the right to the presumption of innocence, the State
Party argues that, although Mr. López Mendoza’s arrest was a matter of public interest, and
therefore led to broad public debate, there was no interference by the executive branch in the
judiciary. The State Party also argues that the defence repeatedly sought to influence the
judge with opinions extraneous to the proceedings, by submitting statements from various
international figures requesting Mr. López Mendoza’s immediate release.
13 It concluded that “testimonial evidence may be admitted only if no recording system existed or was
used at trial, which was not the case”.
CCPR/C/144/D/3053/2017
10
6.26
Regarding the allegation that there was an insufficient basis for the judgment, the State
Party argues that all the evidence was examined and considered. It reaffirms that the authors
seek to have the Committee act as a court of fourth instance.
6.27
In particular, the statements were evaluated to establish criminal liability for
threatening public order and disseminating messages that incited crime, calling for civil and
military insurrection. It was found that Mr. López Mendoza had instigated the violent
demonstration during his call for a coup d’état known as “La Salida”. Of a total 707 messages
sent between January and March 2014, “only 18 call for peaceful protest”, “in 33 instances,
he uses the word ‘criminal’ to refer to President Maduro and other representatives of the
branches of Government, and in 68 occasions, he employs the phrase ‘#LaSalida as a
leitmotif’”. There are “constant insults and incitement of intolerance for the President and
what he represents”. In the conviction, it was found that Mr. López Mendoza “did not use the
appropriate means established in the Constitution to have his demands addressed, but instead
used the art of speech to make his followers believe that there was a supposed constitutional
way out ... thereby sending an inappropriate message to his followers, most of whom were
young, calling on them to take to the streets”. Mr. López Mendoza was found criminally
responsible for instigating acts of arson, punishable under article 343 of the Criminal Code
by 4 to 8 years’ imprisonment, for which he was sentenced to “the average term, 6 years’
imprisonment”; instigating acts of property damage, punishable under articles 473 (3) and
474 of the Criminal Code by a term of imprisonment of 1 month to 2 years, for which he was
sentenced to a term of 1 year and 15 days; committing the offence of public incitement,
punishable under article 285 of the Criminal Code by 3 to 6 years’ imprisonment, for which
he was sentenced to 4 years and 6 months in prison; and committing the offence of criminal
association, punishable by 6 to 10 years’ imprisonment, for which he was sentenced to
8 years’ imprisonment. For the calculation of the combined sentence, article 88 of the
Criminal Code was applied, which provides that the penalty applied will be that of the most
serious offence, increased by half the other penalties, resulting in 13 years, 9 months, 7 days
and 12 hours of imprisonment (instead of 19 years, 6 months and 15 days).
Freedom of expression
6.28
The State Party argues that there was also no violation of the right to freedom of
expression. Mr. López Mendoza actively participated at the hearings that he chose to attend,
expressing his opinions against the Government freely and voluntarily.
6.29
He was also allowed, before and during his detention, to express his ideas against the
Government through national and international media. When he was in prison, he was
interviewed by the international television channel CNN en Español and the Spanish
newspaper El País. He also sent letters to different media outlets for publishing. He was never
prevented from expressing himself on his Twitter account.
6.30
The State Party disputes that Mr. López Mendoza was convicted for the “mere”
expression of ideas critical of the Government. Freedom of expression is not an absolute right.
It was demonstrated that his speeches had content that undermined the country’s democratic
stability. By claiming that the Government has ties to drug trafficking, that it is corrupt,
oppressive and undemocratic, and that it is necessary for the people to take to the streets to
reclaim democracy and “go after the heads of the public authorities”,14 he had a significant
impact among a segment of the population that was mobilized for a series of violent protests.
For this reason, he was recognized as the perpetrator of the criminal offences, in criminal
proceedings that included at least 100 digitized files, 124 witness and expert statements and
23 pieces of documentary evidence. Mr. López Mendoza sent inappropriate messages to his
followers in speeches inciting civil and military insurrection, and he played a decisive, central
role in the carrying out of the offences of arson, property damage, public incitement and
criminal association during the events of 12 February 2014, which resulted in the loss of
human life and millions in damage to public and private property in the country.
14 Judgment at first instance, p. 45.
CCPR/C/144/D/3053/2017
11
Right to political participation
6.31
The State Party argues that deprivation of political rights, for a duration equal to that
of the sentence, is a consequence of criminal punishment.
Authors’ comments on the State Party’s observations on admissibility and the merits
7.1
On 19 October 2023, the authors reiterated that the “alleged attempted coup d’état” of
30 April 2019 is part of the government narrative.
7.2
The authors report that they are living in Spain. Although they are outside Venezuelan
territory, there continues to be a threat to Mr. López Mendoza’s life and liberty and the
integrity of his person owing to the arbitrary sentence imposed. The extradition request sent
by the Supreme Court of Justice to the Government of Spain in May 2021 is unfounded and
constitutes yet another example of the “relentless campaign of political and criminal
persecution waged by the Venezuelan Government” against him.
7.3
The authors reiterate that Mr. López Mendoza’s detention was arbitrary because it
was carried out to punish him for his legitimate exercise of his freedom of expression. The
authors allege that it “is consistent with the Venezuelan Government’s deplorable pattern of
repressing political dissent”.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
Lis alibi pendens
8.2
In accordance with article 5 (2) (a) of the Optional Protocol, the Committee must not
consider any communication unless it has ascertained that the same matter is not being
examined under another procedure of international investigation or settlement. The
Committee notes the State Party’s argument that the same matter has already been examined
by UNESCO. The Committee recalls that the examination of individual cases concerning
allegations of human rights violations under the complaints procedure of the Committee on
Conventions and Recommendations of the Executive Board of UNESCO does not constitute,
for the purposes of article 5 (2) (a), another procedure of international investigation or
settlement because the State Party concerned is not obligated to cooperate, there is no finding
of whether specific rights have been violated, the procedure is confidential, and there is no
authoritative determination of the merits of a case.15 The Committee also recalls that requests
for precautionary measures submitted to the Inter-American Commission on Human Rights
without a related individual petition do not involve a consideration of the merits,16 and that it
is competent to consider a communication the examination of which has already been
concluded under another procedure of international investigation or settlement unless the
State Party has made a reservation explicitly prohibiting successive appeals.17 In the present
case, the Working Group on Arbitrary Detention has concluded its examination of the matter
and the State Party has not made any relevant reservation. In the light of the foregoing, the
Committee concludes that article 5 (2) (a) is not an obstacle to the admissibility of the present
communication.
Exhaustion of remedies in relation to article 7, with respect to the family members
8.3
The Committee notes the State Party’s argument that the part of the communication
relating to the claims of a violation of article 7 in relation to Ms. Tintori Parra and her children
is inadmissible for failure to exhaust domestic remedies. The Committee also notes the
authors’ claim that the remedies were exhausted but were ineffective. The Committee recalls
that the purpose of requiring that domestic remedies be exhausted is to give States Parties the
15 See Bandajevsky v. Belarus (CCPR/C/86/D/1100/2002).
16 F.F.J.H. v. Argentina (CCPR/C/132/D/3238/2018), para. 17.3.
17 Tran v. Australia (CCPR/C/143/D/3665/2019), para. 9.2.
CCPR/C/144/D/3053/2017
12
opportunity to perform their duty to protect and guarantee Covenant rights.18 The Committee
observes from the case file that Ms. Tintori Parra sought remedies with respect to the searches
and the delay in entering the prison as well as events that occurred outside the prison (threats
by private individuals). The Committee therefore takes the view that article 5 (2) (b) of the
Optional Protocol would not preclude its consideration of this part of the communication.
8.4
However, the Committee observes that the authors received a positive response to
their complaints. In connection with the complaints regarding events that occurred outside
the prison, the court ordered surveillance and protection for Ms. Tintori Parra and her two
children. With respect to the complaints regarding the searches, the Committee notes that
protection and security measures were ordered for Ms. Tintori Parra. Lastly, regarding the
complaints about the treatment received by the children in connection with their entry into
the prison after an excessive wait, the Child Protection Council of the municipality of Chacao,
in response to a request for protection measures, issued an order to the prison director to
ensure that the children were treated appropriately. Accordingly, in the light of the protection
measures ordered and in the absence of information showing that these measures were
inadequate, the Committee considers that the claims of a violation of article 7 in respect of
Ms. Tintori Parra’s children have not been sufficiently substantiated and declares them
inadmissible under article 2 of the Optional Protocol.
Fourth instance. Connection to article 14 (1)
8.5
The Committee notes the State Party’s argument that the authors merely express their
disagreement with the judgments of the domestic courts and reiterate arguments that have
already been made before and rejected by the domestic courts, seeking to have the Committee
act as a court of fourth instance. However, the Committee observes that the authors’ central
complaint does not pertain solely to the courts’ assessment of the facts and evidence and
application of domestic law; rather, it relates to the violation of the right to be heard by an
independent and impartial judge. The Committee considers that the claims relating to the lack
of independence and impartiality of temporary or provisional judges and prosecutors have
been sufficiently substantiated for the purposes of admissibility and declares that it is not
precluded, on the basis of article 2 of the Optional Protocol, from examining this part of the
communication.
Consideration of admissibility with respect to other points under article 14 (1)
8.6
With respect to the alleged lack of jurisdiction of the mobile court, the Committee
observes that this relates to the application of domestic law by the courts of the State Party.
The Committee recalls that, according to its settled jurisprudence, the assessment of facts and
evidence and the interpretation of legislation are, in principle, matters for national courts,
unless they are manifestly arbitrary or amount to a denial of justice. 19 The Committee
observes that this issue was already raised during the domestic criminal proceedings, and
both the territorial jurisdiction of the mobile courts and the need for them in the present case,
given the media interest and the gathering of demonstrators near the courthouse, were
established. In the light of the foregoing and in the absence of a manifestly arbitrary element,
the Committee considers that it is not for it to reinterpret or question the applicable national
legislation.
8.7
Likewise, with regard to the alleged violation of the right to a defence during the
appellate proceedings due to the refusal to allow the participation of the former Minister of
Justice of Spain, the Committee observes that the domestic judicial authorities reached a
decision on the matter, and their conclusions do not appear to have been manifestly arbitrary.
Furthermore, Mr. López Mendoza does not establish how the former minister’s lack of
involvement affected his defence, as there was, for example, no explanation of how his
expertise was unique. The Committee thus considers that this claim was not sufficiently
substantiated and declares it inadmissible under article 2 of the Optional Protocol.
8.8
The Committee also observes that the appellate court ruled on the alleged violation of
the principle of publicity. It concluded that the trial had been oral and public to the extent
allowed by the structural limits of the courtroom, “with the public having been present at
18 Settled jurisprudence of the Committee since T.K. v. France, communication No. 220/1987, para. 8.3.
19 See Simms v. Jamaica (CCPR/C/53/D/541/1993).
CCPR/C/144/D/3053/2017
13
almost all the hearings for more than a year”.20 The Committee also observes that, although
some persons had been ordered to leave the courtroom for illegally recording parts of the
trial, the court did not order the doors to be closed. In relation to the denial of access to the
media, the appellate court analysed the situation in comparative law and found that it was
“not a per se violation of the guarantee of a public trial”. It concluded that in the present case
“the grounds for the express restrictions on the media were provided at the time”, and such
restrictions “were permissible, at the judge’s discretion, provided that the grounds for them
were stated”.21 In light of the foregoing, the Committee considers that there may be a basis
for the explanation provided by the State Party regarding the prevention of disruptions to the
normal conduct of proceedings, and it therefore concludes that this claim was not sufficiently
substantiated and declares it inadmissible under article 2 of the Optional Protocol.
8.9
In relation to the alleged arbitrary exclusion of evidence put forward by the defence,
such as statements by students claiming that they alone were responsible for the violence of
12 February 2014, the Committee does not see in the judgment at first instance a request
related to excluded statements by students; nor does it find in the appellate judgment any
grounds for the appeal related to such an exclusion. In addition, with respect to the claim that
no consideration was given to the statement of a former prosecutor, made in the United States
of America, that he had been coerced into fabricating evidence and the retraction, in the media,
by an expert witness of her expert report and her statement in court, the Committee observes
that the appellate court, which considered the admissibility of the evidence at second instance,
noted that the expert witness had testified during the trial and been examined and cross-
examined by the parties and that testimonial evidence could be admitted only if no recording
system had existed or been used at trial, which had not been the case. In the light of the
foregoing, the Committee concludes that these claims have not been sufficiently
substantiated and are therefore inadmissible under article 2 of the Optional Protocol.
Consideration of admissibility under article 14 (2)
8.10
The Committee considers that the claims relating to the violation of the right to the
presumption of innocence have been sufficiently substantiated for the purposes of
admissibility and declares that it is not precluded, on the basis of article 2 of the Optional
Protocol, from examining this part of the communication.
Consideration of admissibility under article 7 in relation to Mr. López Mendoza
8.11
The Committee notes the claim that Mr. López Mendoza’s rights under article 7 were
violated owing to the conditions of his detention at the prison, the treatment he received from
staff and the psychological torture that he experienced because of how his family members
were treated. The Committee also notes that the State Party disputes these claims, indicating
that the author received favourable treatment compared to other convicted persons and
requesting that the submission of false information be considered (see paras. 6.12–6.15
above).
8.12
The Committee considers that, as Mr. López Mendoza has not refuted the arguments
put forward by the State Party with regard to the conditions of his cell and has not
contradicted the information provided by the State Party on the treatment by staff, he has not
sufficiently substantiated these claims for the purposes of admissibility, and it therefore
declares them inadmissible under article 2 of the Optional Protocol.
8.13
Furthermore, the Committee considers that the claims of psychological torture
resulting from the treatment of his family members, which are based on other claims that the
Committee has not accepted, have not been sufficiently substantiated and therefore declares
them inadmissible under article 2 of the Optional Protocol.
Consideration of admissibility under article 10
8.14
The Committee also notes the claim of a violation of article 10 in respect of Mr. López
Mendoza as a result of the solitary confinement – lasting a total of nine months, out of the
three years and four months of his detention at the National Centre for Military Detainees –
imposed without formal proceedings or the possibility of appeal. The Committee also notes
20 Appellate judgment, p. 77.
21 Ibid., pp. 77–79.
CCPR/C/144/D/3053/2017
14
the State Party’s argument that these penalties were applied in response to failures to comply
with the facility’s rules (such as the recording and posting of several videos on Twitter while
inside the prison, the possession of mobile telephones, insulting conduct toward staff and the
sending of clandestine correspondence) and that Mr. López Mendoza was notified in writing
of the penalties and provided with information on his right to appeal, although he did not
appeal. Accordingly, the Committee considers that the claims of a violation of article 10 have
not been sufficiently substantiated and declares them inadmissible under articles 2 and
5 (2) (b) of the Optional Protocol.
Admissibility under articles 9, 19 and 25
8.15
The Committee considers that the claims relating to violations of articles 9, 19 and 25
have been sufficiently substantiated for the purposes of admissibility and declares that it is
not precluded, on the basis of article 2 of the Optional Protocol, from examining them.
Conclusion
8.16
The Committee considers that the claims under articles 9, 14 (1) and (2), 19 and 25 of
the Covenant have been sufficiently substantiated for the purposes of admissibility and
proceeds with its examination on the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
Article 19
9.2
The Committee notes that the authors claim that there was a violation of Mr. López
Mendoza’s right to freedom of expression because his conviction constituted criminalization
for expressing criticism of the Government and was handed down for the “mere expression
of his ideas and thoughts” and without any description of “the circumstances of how, where
or when” his “alleged statements” might have influenced the commission of the offences (see
para. 3.13 above). The Committee also notes that the State Party disputes that Mr. López
Mendoza was convicted for the mere expression of ideas critical of the Government and
claims that he was recognized as the perpetrator of several offences for having threatened
public order by disseminating messages calling for civil and military insurrection and, in
particular, issuing a call to “go after the heads of the public authorities”, and specifically for
having instigated the violent demonstration of 12 February 2014 in connection with his
movement La Salida (see paras. 6.27–6.30 above).
9.3
The Committee notes that freedom of expression is an indispensable condition for the
full development of the person, is essential for any society and constitutes the foundation
stone for every free and democratic society:22 democracy is not conceivable without the
possibility that dissenting political voices be fully heard,23 so that democracy will not be
enervated, pluralism will not deteriorate, the mechanisms for complaint by the individual will
not become ineffectual and, above all, a fertile ground will not be created for authoritarian
systems to take root in society.24 The Committee also recalls that, under article 19 (3) (b), of
the Covenant, as the exercise of the right to freedom of expression carries with it special
duties and responsibilities, it may be subject to certain restrictions that are provided by law
and necessary, in particular, for the protection of national security or of public order, or of
public health or morals. Such restrictions must conform to the strict tests of necessity and
proportionality.25 The Committee also recalls that States Parties must put in place effective
measures to protect against attacks aimed at silencing those exercising their right to freedom
of expression and that article 19 (3) may never be invoked as a justification for the muzzling
22 General comment No. 34 (2011), para. 2.
23 Inter-American Court of Human Rights, Ivcher-Bronstein v. Peru, Judgment, 6 February 2001,
para. 151.
24 Inter-American Court of Human Rights, Herrera-Ulloa v. Costa Rica, Judgment, 2 July 2004,
para. 116; Granier et al. (Radio Caracas Televisión) v. Venezuela, Judgment, 22 June 2015,
para. 140; and San Miguel Sosa et al. v. Venezuela, Judgment, 8 February 2018, para. 154.
25 General comment No. 34 (2011), para. 22.
CCPR/C/144/D/3053/2017
15
of any advocacy of multiparty democracy, democratic tenets and human rights.26 Lastly, the
Committee recalls that, when a State Party invokes a legitimate ground for restriction of
freedom of expression, it must demonstrate in specific and individualized fashion the precise
nature of the threat, and the necessity and proportionality of the specific action taken, in
particular by establishing a direct and immediate connection between the statements and the
harm.27
9.4
In this regard, the Committee notes the information provided by the State party on
Mr. López Mendoza’s ability to express himself while in detention (see para. 6.29 above).
The Committee also notes the decisions of the courts on Mr. López Mendoza’s statements,
including some made after the events of 12 February 2014 (see para. 6.27 above). However,
no direct and immediate connection was established between Mr. López Mendoza’s
statements and the harm that occurred on 12 February 2014. As noted by the Working Group
on Arbitrary Detention, the Government does not indicate how Mr. López Mendoza’s words
might have led to the acts of arson and the damage to property with which he is charged. It
does not specify which parts of his statements may have caused those serious acts or incited
their commission. Furthermore, when the Government refers to the offence of unlawful
association, it does not make clear which illegal group it is referring to.28 The Committee also
shares the view of the Working Group that there is no evidence to suggest that there is a cause
and effect relationship between the organization of a political demonstration, the speech
made in the course of that demonstration and the deaths, injuries and material damage that
occurred on the fringes of the demonstration, which had, moreover, already ended.29 This
conclusion is reinforced by the fact that the courts based their findings in part on statements
made after the events and on statistics that do not provide specific and individualized
evidence of a threat to national security under article 19 (3) (see para. 6.29 above). In the
light of the foregoing, the Committee concludes that his conviction was handed down to curb
his expression of political dissent, in violation of article 19 (3) of the Covenant.
Article 9
9.5
The Committee notes that the authors claim that the facts of the present case constitute
a violation of Mr. López Mendoza’s liberty of person because his arrest was arbitrary, as it
was ordered for “an unheard of and unjustified number of offences” and as it was a
punishment for his legitimate exercise of his right to freedom of expression. The Committee
also notes the State Party’s argument that it is not true that the arrest was made without a
warrant, as alleged by Mr. López Mendoza before the Working Group on Arbitrary Detention
and its indication that the opinion of the Working Group was based on this false premise. The
State Party points out that, after the events of 12 February 2014, when, after Mr. López
Mendoza’s speech, demonstrators set fire to official vehicles, attacked and destroyed the
plaza of Parque Carabobo and damaged the ground floor of the building of the Public
Prosecution Service, his deprivation of liberty was ordered by a competent court in the
context of criminal proceedings initiated for his suspected involvement in the commission of
various criminal offences defined under domestic law, in which he was subsequently found
guilty, it having been proved that he made daily calls on social media for his 2.7 million
followers to demonstrate, causing “an aggressive attitude among his followers” (see para. 6.5
above). The prosecutor thus asked the court to issue an arrest warrant on suspicion of the
commission of several offences. The judge hearing the case declared the request for the arrest
to be well-founded and issued arrest warrant No. 008-14.
9.6
The Committee recalls that article 9 provides that no one shall be deprived of liberty
except on such grounds and in accordance with such procedure as are established by law.30
While the Committee observes that arrest warrant No. 008-14 was indeed issued in response
to the initiation of criminal proceedings for the suspected commission of several offences, it
also considers that the statements made by the author at the time did not appear to justify the
26 Ibid., para. 23.
27 Ibid. para. 36. See also Shin v. Republic of Korea (CCPR/C/80/D/926/2000), paras. 7.2 and 7.3; and
Barriga et al. v. Ecuador (CCPR/C/136/D/3267/2018), para. 9.5.
28 Working Group on Arbitrary Detention, opinion No. 26/2014, para. 52.
29 Ibid., para. 54.
30 General comment No. 35 (2014), para. 22. See also Lula da Silva v. Brazil
(CCPR/C/134/D/2841/2016 (Final proceedings)), para. 8.2.
CCPR/C/144/D/3053/2017
16
criminal charges and thus the arrest warrant.31 Furthermore, having concluded above that
there was a violation of article 19, the Committee considers that the author’s arrest also
curbed his political dissent, in violation of article 9 of the Covenant.
Article 14 (1)
9.7
The Committee notes that the authors claim that their right to be heard by an
independent and impartial judge was violated, as the judges and prosecutors who took part
in the case were temporary or provisional officials appointed on a discretionary basis for
political reasons. The Committee also notes that, in the State Party’s view, the authors confine
themselves to general allegations about the independence of the courts and prosecutors,
without clearly specifying how the actions of the temporary or provisional judges and
prosecutors were biased and without having pursued any of the remedies provided for under
domestic law for challenging the impartiality of judges. Furthermore, in the State Party’s
view, all the judges who heard the case showed no noticeable preferences at any time,
sustaining objections made by both the prosecution and the defence.
9.8
The Committee recalls its long-standing jurisprudence according to which the right to
be tried by an independent and impartial tribunal is an absolute right that may suffer no
exception.32 In addition, The Committee recalls that States Parties should take specific
measures to guarantee the independence of the judiciary, protect judges from any form of
political influence and establish clear procedures and objective criteria for appointment,
remuneration, tenure, promotion, suspension, dismissal and disciplinary sanctions.
Furthermore, a situation where the functions and competencies of the judiciary and the
executive are not clearly distinguishable or where the latter is able to control or direct the
former is incompatible with the notion of an independent tribunal.33 In the present case, in
which high-ranking officials made statements against a recognized political dissident prior
to any conviction, in a judicial context where judges are appointed by the executive branch
under provisional appointments that, moreover, deprive them of the stability and composure
needed for the performance of their duties, including the examination of highly political cases,
the Committee considers that all of the foregoing factors may create an atmosphere of
pressure where justice officials feel they must follow a certain direction, thus giving rise to a
perception of a lack of judicial guarantees.34 Because of this set of factors – the lack of
necessary guarantees for security of tenure, the appointment of judges by the executive
branch, the condemnatory statements by high-ranking officials and the political persecution
against the author – the Committee concludes that there has been a violation of article 14 (1)
of the Covenant.
Article 14 (2)
9.9
The Committee notes that the authors claim that the facts of the present case constitute
a violation of the right to the presumption of innocence because of the public statements of
high-ranking officials who prejudged the case, including statements by the President of the
Republic – who described Mr. López Mendoza as being part of a group of “right-wing fascists
sowing the seeds of fear and violence”; said on night of 12 February 2014: “I say to these
fugitives from justice: Give yourselves up! You should be behind bars”; and stated: “López
ordered the street to be burned, and where is he? In prison, like I said” – and statements by
the then Minister for Foreign Affairs, Elías Jaua, who said that Mr. López Mendoza was
responsible for the acts of violence (see para. 3.8 above). The Committee also notes the State
31 See also Inter-American Commission on Human Rights, Situation of Human Rights in Venezuela,
2017 (OEA/Ser.L/V/II. Doc. 209), para. 92.
32 General comment No. 32 (2007), para. 19. See also Lula da Silva v. Brazil, para. 8.9.
33 Cedeño v. Bolivarian Republic of Venezuela (CCPR/C/106/D/1940/2010), para. 7.3; and
Brewer‑Carías v. Bolivarian Republic of Venezuela (CCPR/C/133/D/3003/2017), paras. 9.2 ff. See
also CCPR/C/VEN/CO/5, para. 35. See further Inter-American Court of Human Rights, Casa Nina v.
Peru, Judgment, 24 November 2020, paras. 81–83; Martínez Esquivia v. Colombia, Judgment,
6 October 2020, para. 97; Apitz Barbera et al. v. Venezuela, Judgment, 5 August 2008, para. 43; and
Álvarez Ramos v. Venezuela, Judgment, 30 August 2019, para. 148.
34 Conference room paper setting out the detailed findings of the independent international fact-finding
mission on the Bolivarian Republic of Venezuela, para. 162; available at
https://www.ohchr.org/en/hr-bodies/hrc/regular-sessions/session45/list-reports. See also Inter-
American Commission on Human Rights, Situation of Human Rights in Venezuela, 2017, para. 92.
CCPR/C/144/D/3053/2017
17
Party’s argument that, as a matter of public interest, Mr. López Mendoza’s arrest led to broad
public debate as a matter of general interest but did not entail interference by the executive
branch in the judiciary. The State Party also argues that the defence repeatedly sought to
influence the judge by submitting statements from various international figures that went so
far as to request Mr. López Mendoza’s immediate release.
9.10
The Committee recalls that it is a duty for all public authorities to refrain from
prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming
the guilt of the accused,35 and a direct reference to a case made by the President before a
judgment is handed down can violate the principle of the presumption of innocence.36 The
Committee observes that, in the present case, these statements have neither been refuted nor
explained by the State Party. It also recalls its earlier conclusion regarding judges and
prosecutors who lack the necessary guarantees for security of tenure, including stability and
continuity, and may therefore be influenced in their work by statements of the Head of State.
Therefore, the Committee considers that, in the context of a trial of a political dissident, such
statements by the Head of State may have an impact on prosecutors and judges, who may
feel compelled to lean in a certain direction. The Committee concludes that, because of the
direct reference to the case by high-ranking officials and the President of the country and the
manner in which their statements were made, there is a presumed violation of the principle
of the presumption of innocence that applies to every accused person in the absence of a
judgment to the contrary.
Article 25
9.11
Finally, the Committee notes the claim that Mr. López Mendoza’s right to vote and to
stand for election was violated because he was deprived of his political rights without
reasonableness, justification or grounds. The Committee also notes the State Party’s
argument that the deprivation of political rights was applied in accordance with the Criminal
Code as a consequence of criminal punishment and for the duration of the sentence.
9.12
While the Committee observes that the deprivation of political rights was applied in
accordance with the Criminal Code as a consequence of criminal punishment and is
proportionate to the length of the sentence, as required by general comment No. 25 (1996),37
it also considers that, in the present case, the violation of article 25 follows directly from the
findings of violations of articles 9, 14 and 19.
10.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the information before it discloses a violation by the State Party of articles 9, 14 (1) and (2),
19 and 25 of the Covenant.
11.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to
provide an effective remedy. Accordingly, the State Party should: (a) make full reparation to
individuals whose Covenant rights have been violated, including through adequate
compensation; and (b) review the conviction handed down on 10 September 2015. The State
Party is also under an obligation to take steps to prevent similar violations from occurring in
the future. In this regard, the State Party should: (a) take all necessary measures to effectively
guarantee the exercise of freedom of expression; and (b) take the necessary legislative or
administrative measures to increase the independence and impartiality of the judicial system.
12.
Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State Party, within 180 days, information about the measures taken to give effect to the
present Views. The State Party is also requested to publish the present Views and to have
them widely disseminated in the official languages of the State Party.
35 General comment No. 32 (2007), para. 30. See also Zinsou v. Benin (CCPR/C/111/D/2055/2011),
para. 7.3
36 Cedeño v. Bolivarian Republic of Venezuela, para. 7.4.
37 General comment No. 25 (1996), para. 14.
CCPR/C/144/D/3053/2017
18
Annex I
[Spanish only]
Voto particular (parcialmente disidente)
de Hélène Tigroudja, miembro del Comité
1.
Estoy de acuerdo con las conclusiones del Comité sobre la admisibilidad de la
comunicación y sobre la violación, en contra de Leopoldo Eduardo López Mendoza, de los
derechos que le confieren los artículos 9 (libertad individual), 19 (libertad de expresión),
14 (derecho a un juicio justo, presunción de inocencia y derechos de la defensa) y 25
(derechos electorales) del Pacto. Sin embargo, me resulta imposible compartir la conclusión
del Comité sobre la inadmisibilidad de la denuncia de malos tratos (art. 7) y las condiciones
de detención inhumanas (art. 10). Esta conclusión contradice flagrantemente las conclusiones
de la Comisión Interamericana de Derechos Humanos sobre el Sr. López Mendoza y su
familia, así como las conclusiones de la misión internacional independiente de determinación
de los hechos sobre la República Bolivariana de Venezuela establecida en el marco de las
Naciones Unidas1, que cabría esperar que el Comité hubiera tenido en cuenta. Sin embargo,
lo que es más importante, la decisión del Comité contiene una contradicción interna que no
solo invalida la conclusión sobre los artículos 7 y 10 del Pacto, sino que revela el carácter
artificial de su enfoque de la cuestión del agotamiento de los recursos internos y de la
condición de fundamento de las alegaciones, así como los peligros del mensaje que envía a
los opositores políticos una decisión de este tipo. El presente voto particular insistirá en estos
puntos.
2.
En los párrafos 8.3 y 8.4 del dictamen, el Comité rechaza las quejas de la esposa y los
hijos del autor en relación con los artículos 7 y 10, en parte por no haberse agotado los
recursos internos (párr. 8.3) y en parte por falta de fundamento (párr. 8.4). Sin embargo, estos
dos aspectos de la decisión no resisten el análisis. En cuanto al agotamiento de los recursos
internos, resulta sorprendente que el Comité remita a la familia del autor a los tribunales del
Estado Parte, de los que afirma más adelante, en la parte relativa al fondo, que no respetan
ninguna de las garantías impuestas por el artículo 14, párrafo 1, del Pacto (párrs. 9.7 y ss.).
En cuanto a la falta de fundamento, el Comité ignora las alegaciones fundamentadas relativas
a la inseguridad de la familia del autor, reconocidas en múltiples ocasiones por la Comisión
Interamericana de Derechos Humanos, que ha formulado numerosas medidas cautelares a su
favor, y por la misión internacional independiente de determinación de los hechos2. Estos
elementos fueron aportados por el autor al Comité, que decidió, sin justificarlo, descartarlos.
Sin embargo, teniendo en cuenta el contexto del caso —la represión de los opositores
políticos y de sus familiares y abogados3 y las deficiencias crónicas de la justicia señaladas
por el Comité—, este Comité debería haber concluido la admisibilidad con arreglo al artículo
7 respecto a la familia y haber constatado la violación de este artículo por parte de la
República Bolivariana de Venezuela.
3.
De manera igualmente incoherente y artificial, el Comité decide rechazar las
denuncias del autor en su propio nombre, basándose en los artículos 7 (malos tratos,
párrs. 8.11 a 8.13) y 10 (régimen penitenciario, párr. 8.14). Esta parte de la decisión no solo
es factualmente y jurídicamente incorrecta, sino también sumamente peligrosa.
4.
En cuanto al régimen de sanciones disciplinarias y al aislamiento durante más de
nueve meses denunciados por el autor (art. 10), el Comité hace suyas las conclusiones del
Estado Parte según las cuales, dado que el autor infringió el reglamento penitenciario al
1 Véase, en particular el documento de sesión con las conclusiones detalladas de la misión internacional
independiente de determinación de los hechos sobre la República Bolivariana de Venezuela.
2 Ibid., párrs. 400 y ss.
3 Calificados, cabe recordar, como crímenes de lesa humanidad por la misión internacional
independiente de determinación de los hechos y actualmente examinados por la Corte Penal
Internacional en la causa relativa a la Situación en Venezuela I.
CCPR/C/144/D/3053/2017
19
publicar mensajes en las redes sociales, la sanción estaba justificada y, por lo tanto, las
alegaciones carecen de fundamento. El Comité añade que el autor no ha interpuesto recurso
alguno contra estas sanciones. Más allá del carácter puramente formalista de este último
punto —una vez más, contradicho por la continuación de la decisión del Comité, que señala
los defectos estructurales de la justicia interna—, esta posición del Comité contradice de
manera directa y sin justificación la conclusión del Grupo de Trabajo sobre la Detención
Arbitraria relativa al mismo autor por los mismos hechos, que había estimado que, entre otros
elementos, el mantenimiento en régimen de aislamiento del autor constituía una violación
grave de los artículos 9 y 14 del Pacto4. Es cierto que el Grupo de Trabajo no menciona el
artículo 10 del Pacto, ya que su mandato se centra en la detención, pero el hecho es que, para
el Grupo de Trabajo, el aislamiento debe situarse en el contexto de las demás violaciones
sufridas por el autor y no puede ser justificado por las autoridades por el simple motivo, como
acepta el Comité, de que el autor haya ejercido su libertad de expresión.
5.
Aún más problemática es la conclusión del Comité sobre el artículo 7 en relación con
las condiciones de detención del autor y los malos tratos que habría sufrido (párr. 8.11).
Como se ha indicado anteriormente, estas alegaciones detalladas en la denuncia están
ampliamente respaldadas por la Comisión Interamericana de Derechos Humanos y en las
conclusiones de la misión internacional independiente de determinación de los hechos. En
sus conclusiones detalladas, publicadas en 2020, la misión señala, por ejemplo, que, además
del aislamiento, la brutalidad y la intimidación, ha recibido pruebas suficientes para
establecer que, al menos en una ocasión, los funcionarios de la prisión supuestamente
arrojaron excrementos y orina en la celda del Sr. López Mendoza. Ninguna de estas denuncias
fue atendida por las diferentes autoridades5.
6.
Al optar por dar prioridad —sin motivarlo— a la argumentación del Estado Parte en
detrimento de las alegaciones fundamentadas del autor, y respaldadas por varias decisiones
e informes internacionales, el Comité adopta, en este dictamen, una posición difícilmente
comprensible y sostenible: por un lado, afirma que el derecho a la libertad de expresión de
los opositores políticos a un régimen no democrático debe protegerse, pero, por otro, deja vía
libre al Estado para aislar a dichos opositores, maltratarlos y privarlos de la protección de la
ley.
4 Grupo de Trabajo sobre la Detención Arbitraria, opinión núm. 26/2014, párr. 59.
5 Documento de sesión con las conclusiones detalladas de la misión internacional independiente de
determinación de los hechos sobre la República Bolivariana de Venezuela, párr. 399.
CCPR/C/144/D/3053/2017
20
Annex II
[Spanish only]
Voto particular (parcialmente concurrente)
de Rodrigo A. Carazo, miembro del Comité
1.
Presento esta declaración de voto parcialmente concurrente en relación con las
conclusiones del Comité en su dictamen respecto de la comunicación núm. 3053/2017.
Valoro el reconocimiento de violaciones a los artículos 9, 14, párrafos 1 y 2, 19 y 25 del
Pacto en perjuicio del autor.
2.
A pesar de que se acepta que la orden de aprehensión del autor no parece estar
justificada y pudo incluso haber sido dictada “para frenar su disidencia política” (párr. 9.6),
no se ordena la puesta en libertad solicitada por el autor (y ni siquiera se hace referencia a
ella). El Sr. López Mendoza se encuentra en España sujeto al trámite de una solicitud de
extradición formulada por el Estado Parte.
3.
A pesar de que el Comité considera que se violó el artículo 25 del Pacto en relación
con los derechos políticos del autor, no se ordena la restitución de dichos derechos políticos,
tal y como solicitó el autor. El dictamen ni siquiera se refiere a ello.
4.
El dictamen hace caso omiso de la petición de investigar, juzgar y sancionar a los
responsables de las graves violaciones a los derechos humanos que se constatan en el
expediente.
5.
Considero errado en grado muy importante el haber concluido que las alegaciones de
tortura física y psicológica en perjuicio de autor “no han sido suficientemente fundamentadas”
y por lo tanto se declara inadmisible esa petición. Abundante ha sido la mención de torturas
de ambos tipos relacionadas con las condiciones de detención: la sanción que se impuso al
autor por haber publicado y distribuido información sobre las condiciones de la prisión,
admitida por el Estado Parte (párr. 6.16); la privación de luz natural de que fue objeto a lo
largo de cuatro meses; los lanzamientos frecuentes de orines y excrementos sobre su cuerpo
y su entorno; la perturbación del sueño en las noches previas a audiencias judiciales, y las
amenazas de muerte específicamente recibidas. Lo anterior debe añadirse a la tortura
psicológica que para el autor significó el vejamen repetitivo al que era expuesta su esposa
cuando le visitaba en el presidio, que incluía el tener que quitarse las ropas y ser sometida a
requisas profundas incluso en su intimidad corporal, hechos todos ellos que no fueron
desmentidos por el Estado Parte.
6.
Igualmente alejada de la realidad fáctica es la conclusión del Comité en el sentido de
que el hecho de que el autor haya sido mantenido en aislamiento solitario por más de 9 de
los 40 meses que estuvo detenido no fundamenta suficientemente la violación del artículo 10
del Pacto (tratamiento inhumano y degradante en prisión). En el dictamen se da crédito más
bien a la explicación del Estado Parte de que las continuas sanciones de aislamiento
respondían a la conducta del autor por evidenciar precisamente condiciones inhumanas del
centro de detención, como tener teléfonos celulares, hacer grabaciones y publicaciones en
Twitter de dichas condiciones y desarrollar conductas típicas de quienes ejercen otros
derechos civiles y políticos, tales como tenencia de teléfonos celulares, proselitismo político
o envío de correspondencia en forma clandestina y, en general, por haber alterado el orden
del centro (estableció la costumbre de que todos los días, al caer la noche, los detenidos se
asomaran a sus puertas a gritar consignas —políticas, por supuesto—, en coro y a viva voz).
7.
En resumen, el dictamen, por sus serias falencias, se encuentra muy lejos de constituir
una reparación integral, como lo exige el procedimiento en caso de violaciones constatadas.
Esas limitaciones impiden que este caso sea un ejemplo de verdadera justicia y reparación
integral.
CCPR/C/144/D/3053/2017
21
Annex III
[Spanish only]
Voto particular (concurrente) de Hernán Quezada y Wafaa Ashraf
Moharram Bassim, miembros del Comité
1.
Concordamos plenamente con la conclusión del Comité de que los hechos examinados
en el presente caso ponen de manifiesto una violación por el Estado Parte de los artículos 9,
14, párrafos 1 y 2, 19 y 25 del Pacto. Sin embargo, tenemos una observación respecto de la
forma en que se resolvió la situación relativa a una violación de la libertad de expresión del
autor, particularmente en el párrafo 9.4 del dictamen.
2.
Al respecto, el Comité sostiene que no se ha establecido una conexión directa e
inmediata entre las declaraciones públicas del autor y los resultados lesivos que se produjeron
el 12 de febrero de 2014, y refuerza su posición aludiendo a las conclusiones contenidas en
el informe del Grupo de Trabajo sobre la Detención Arbitraria de 2014, en el cual se indicaba
que el Gobierno del Estado Parte no precisó en qué medida el discurso del Sr. López Mendoza
pudo dar lugar a los incendios y daños de que se le acusa, agregando que no había elementos
que permitieran concluir una relación de causa a efecto entre la convocatoria a una
manifestación política, el discurso pronunciado durante la misma y los resultados de muertos,
heridos y daños materiales que se produjeron al margen de dicha concentración, que, por otra
parte, ya había concluido1. Y como elemento adicional se señala en el dictamen que “esta
conclusión se refuerza por el hecho de que los tribunales han parcialmente basado sus
conclusiones en declaraciones posteriores a los eventos o en el uso de estadísticas que no
ofrecen una prueba concreta e individualizada de la amenaza a la seguridad nacional en los
términos del artículo 19, párrafo 3”.
3.
Lo que nos preocupa de este razonamiento es que el Comité se refiere a decisiones de
los tribunales del Estado Parte y, concretamente, a elementos probatorios al sostener que “los
tribunales han parcialmente basado sus conclusiones en declaraciones posteriores a los
eventos o en el uso de estadísticas que no ofrecen una prueba concreta e individualizada”.
Como muestra la reiterada jurisprudencia del Comité, la valoración de hechos y pruebas o la
interpretación de la legislación son cuestiones que corresponden, en principio, a los tribunales
nacionales, a menos que sean manifiestamente arbitrarias o constituyan una denegación de
justicia2, cuestión que no se aborda en el dictamen. Sin embargo, la afirmación que hace el
Comité sobre las conclusiones de los tribunales del Estado Parte podría tácitamente apuntar
a que estos hicieron una valoración de pruebas manifiestamente arbitraria, asunto que no
formó parte de la discusión de este caso. En consecuencia, nos parece que la frase citada no
debió haberse incluido como parte del razonamiento del Comité en el párrafo 9.4 del
dictamen.
1 Grupo de Trabajo sobre la Detención Arbitraria, opinión núm. 26/2014, párrs. 52 y 54.
2 Véase Simms c. Jamaica (CCPR/C/53/D/541/1993).