Opinion; Subjects: VENEZUELA (BOLIVARIAN REPUBLIC OF), ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-11318 (E) 120312 220312
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its sixty-first session,
19 August–2 September 2011
No. 28/2011 (Bolivarian Republic of Venezuela)
Communication addressed to the Government on 6 June 2011
Concerning: Mr. Miguel Eduardo Osío Zamora
The State is a party to the International Covenant on Civil and Political Rights.
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the former Commission on Human Rights, which clarified and extended the Working
Group’s mandate by resolution 1997/50. The Human Rights Council approved the Working
Group’s mandate in its decision 2006/102 and extended it for a further three-year period in
resolution 15/18 of 30 September 2010. In accordance with its methods of work, the
Working Group transmitted the above communication to the Government.
2.
The Working Group considers that deprivation of liberty is arbitrary in cases falling
into one of the following categories:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to the detainee) (Category I);
(b)
When the deprivation of liberty results from a judgement or sentence
resulting from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19,
10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are
concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on
Civil and Political Rights (Category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (Category III);
(d)
When asylum-seekers, immigrants or refugees are subject to prolonged
administrative custody without the possibility of administrative or judicial remedy
(Category IV);
United Nations
A/HRC/WGAD/2011/28
General Assembly
Distr.: General
29 February 2012
English
Original: Spanish
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(e)
When the deprivation of liberty constitutes a violation of the international
law for reasons of discrimination based on birth; national, ethnic or social origin; language;
religion; economic condition; political or other opinion; gender; sexual orientation;
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (Category V).
3.
The Working Group regrets the Government’s failure to reply to the communication
addressed to it. For this reason the Working Group will adopt its opinion on the basis of the
allegations and background provided by the source.
Submissions
Communication by the source
4.
The source indicates that Miguel Eduardo Osío Zamora, a married Venezuelan
national, born on 28 May 1968 who is a lawyer by profession, used to work as the Legal
and Compliance Director of the brokerage firm Econoinvest Casa de Bolsa, C.A.
(hereinafter Econoinvest). Mr. Osío Zamora was arrested on 24 May 2010, without a
warrant, by police officers of the Organized Crime Division of the Scientific, Criminal and
Forensic Investigation Unit (CICPC) attached to the Ministry of People’s Power for
Internal Relations and Justice. He remains deprived of his liberty and is currently being
held in the facilities of the Military Intelligence Directorate.
5.
According to information received, the police raided Econoinvest’s premises on 24
May 2010 for the purpose of searching its offices and any annexes and seizing foreign
currency and documents that might provide evidence of illegal foreign currency trading as
well as data stored on electronic media, electronic and physical (documentary) records of
any potentially illegal foreign exchange transactions and any other forensic evidence
relevant to criminal investigation No. F20NN-017-2010 conducted by National Public
Prosecution Service Office No. 20, which had full competence.
6.
Search warrant No. 015/10 was issued on 21 May 2010 by Santos Montero Tovar,
the provisional judge in charge of the sixteenth court of first instance responsible for the
criminal court circuit of Caracas Metropolitan Area and was valid for seven days.
7.
The source reports that the public prosecutors of National Public Prosecution
Service Offices nos. 23 and 61, who had full competence, asked the judge of the sixteenth
court of first instance responsible for the criminal court circuit of Caracas Metropolitan
Area to issue a warrant to search Econoinvest’s offices as a matter of the utmost urgency.
Their request was prompted by a complaint filed by Mr. Tomás Sánchez, President of the
National Securities Commission, on 14 May 2010. The Commission had been monitoring a
number of brokerage firms that were thought to have been carrying out foreign currency
transactions without having physical securities to support the transactions. According to the
information provided by the source, the written request for the search warrant was
submitted on 22 May 2010, i.e. after the date on which the search warrant was issued (21
May).
8.
The raid in question took place on 24 May 2010 at Econoinvest’s head office and
was carried out by officers of the National Organized Crime Division of the Scientific,
Criminal and Forensic Investigation Unit (CICPC) in the presence of provisional public
prosecutors from National Public Prosecution Service Offices nos. 20, 23 and 74, the
Deputy Director of the Anti-Corruption Directorate of the Public Prosecution Service and
the Director of Court Proceedings of the Public Prosecution Service, Alejandro Castillo.
The report on the raid states that on the instructions of the public prosecutors present, it was
decided that the directors of Econoinvest should appear before the court of summary
jurisdiction on the following day.
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9.
Mr. Osío Zamora was arrested at Econoinvest’s offices on 24 May 2010, after the
raid had been carried out. Five days later, on 29 May 2010, his detention was sanctioned by
the provisional judge, Mr. Montero Tovar.
10.
The source highlights that the public prosecutors and police officers who took part in
the raid neither had nor presented an arrest warrant, written order or court decision
authorizing the arrest of Mr. Osío Zamora. Nonetheless, the public prosecutors instructed
the police officers to arrest Mr. Osío Zamora and to take him to the police station on
suspicion of having committed two offences — illegal currency trading and criminal
association — by trading in bonds through Econoinvest, allegedly without the Central Bank
of Venezuela’s involvement or supervision.
11.
Mr. Osío Zamora was taken to the premises of the Organized Crime Division of
CICPC. The judicial authorities subsequently ordered that he be detained at the premises of
the CICPC Special Operations Brigade (BAE), now known as the Rapid Response Brigade
(BRI). In the end, he was transferred to the Military Intelligence Directorate where he
continues to be held today.
12.
The bond transactions at the root of the deprivation of liberty and the criminal
charges subsequently brought against Mr. Osío Zamora were transactions in principal and
interest covered bonds, known as TICC bonds (Títulos de Interés y Capital Cubiertos),
issued by the Bolivarian Republic of Venezuela and denominated in United States dollars.
All the transactions on which the criminal charges are based involved TICC bonds. The
transactions in question were made at the end of 2007 by Econoinvest and other brokerage
firms and were carried out with the authorization of the Central Bank of Venezuela and the
National Securities Commission. Econoinvest had been audited by the National Securities
Commission on numerous occasions in the past and the latter had never queried the
legitimacy of its TICC bond transactions.
13.
These transactions were fully protected by law at the time of their execution due to
an express legal provision that explicitly excluded this type of transaction from being
considered illegal foreign exchange transactions. In this connection, the source refers to
article 9 of the Act on Illegal Foreign Exchange Transactions published in the Gaceta
Oficial (Special Issue) No. 5867 on 28 December 2007. This legal text, which was in effect
until 17 May 2010, establishes that:
“The Central Bank of Venezuela shall have exclusive competence to buy and sell
foreign currency of any amount through authorized foreign exchange dealers. Any
person who contravenes this provision shall have committed an illegal foreign
exchange transaction and shall be fined twice the amount of the transaction or its
equivalent in bolivares. Any person who, in one or more transactions, in the same
calendar year, and bypassing the Central Bank of Venezuela, buys, sells or in any
way offers, disposes of, transfers or receives foreign currency in an amount of
between 10,000 and 20,000 United States dollars, or its equivalent in another
currency, shall be fined twice the amount of the transaction, or its equivalent in
bolivares.
When, in the above circumstances, the transaction amounts to more than 20,000
United States dollars, or its equivalent in another currency, the penalty shall be
imprisonment from 2 to 6 years and a fine equivalent in bolivares to twice the
amount of the transaction.
This shall be without prejudice to the obligation to surrender or sell the foreign
currency to the Central Bank of Venezuela, in accordance with applicable legal
rules.
Bond transactions shall be excluded from these provisions.”
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14.
The transactions at the origin of the Public Prosecution Service’s charges against
Mr. Osío Zamora relate to bond transactions carried out on 23 January 2010 and 10 May
2010. On these dates, the legal provisions cited above were fully in force. The source
explains that the law in question was subsequently amended to become the text published in
the Gaceta Oficial (Special Issue) No. 5975 on 17 May 2010, which reads as follows:
“Article 9 shall be amended as follows:
Article 9.
The Central Bank of Venezuela shall have exclusive competence to buy and sell
foreign currency of any amount, in cash or in bonds, with the aim of obtaining
foreign currency balances for itself or for its customers through the disposal thereof
prior to the maturity date. Any person who contravenes this Act shall have
committed an illegal foreign exchange transaction and shall be fined twice the
amount of the transaction, or its equivalent in bolivares.
Any person who, in one or more transactions, in the same calendar year, and
bypassing the Central Bank of Venezuela, buys, sells or in any way offers, disposes
of, transfers or receives foreign currency in an amount of between 10,000 and
20,000 United States dollars, or its equivalent in another currency, shall be fined
twice the amount of the transaction, or its equivalent in bolivares.
When, in the above circumstances, the transaction amounts to more than 20,000
United States dollars, or its equivalent in another currency, the penalty shall be
imprisonment from 2 to 6 years and a fine equivalent in bolivares to twice the
amount of the transaction.
This shall be without prejudice to the obligation to surrender or sell the foreign
currency to the Central Bank of Venezuela, in accordance with applicable legal
rules.”
15.
In the source’s view, in addition to this legal basis, the legality of the transactions is
confirmed by a memorandum sent by the Director-General of the Ministry of the Economy
and Finance’s Legal Office to the National Office of Public Credit on 15 July 2010. In this
memorandum it is expressly stated that TICC bonds may be traded on the secondary market
both in United States dollars and in bolivares. The source adds that the Public Prosecution
Service twisted the law so that it could deprive Mr. Osío Zamora — and others — of their
liberty and bring charges against them, highlighting that although the TICC bonds were
denominated in United States dollars they could be purchased in bolivares only. The source
emphasizes in this regard that neither the Central Bank of Venezuela nor the National
Securities Commission made this qualification prior to the Act’s amendment, that they did
not at any time prohibit trading in TICC bonds in dollars and that they never stated that the
bonds should be traded in bolivares only. Furthermore, month after month, all such
transactions were reported to the National Securities Commission before the 15th of the
following month, with a general balance sheet statement and indices attached.
16.
Furthermore, the source believes that Mr. Osío Zamora’s detention is part of a plan
devised and executed by the government authorities that is guided by political rather than
legal considerations. The source states in this regard that, as soon as the law in question was
amended, Econoinvest ceased trading in TICC bonds. Its directors were nonetheless
arrested for transactions they had carried out before the law was changed.
17.
The source recalls that the authorities started to intervene and initiate criminal
proceedings against the directors of various financial institutions in 2009. The ambit of
their interventions was subsequently extended to include any firm directly or indirectly
associated with such financial institutions or their shareholders, and thus henceforth also
included securities houses and brokerage firms. The source believes in that in 2010 a
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situation of generalized persecution of directors of brokerage firms took hold, culminating
in the State securities regulator taking action against many of these institutions and
preventing them from fulfilling their institutional duties and responsibilities.
18.
Mr. Osío Zamora was arrested and held in police custody for five days without a
warrant. Only on his sixth day in custody was his detention as a precautionary measure
sanctioned.
19.
The source recalls that, in criminal proceedings, deprivation of liberty should be an
exceptional measure of last resort only. For this reason, the courts should always favour
other less detrimental measures so long as the aims of the legal process can still be
safeguarded. In this connection, the source cites article 250 of the Code of Criminal
Procedure of the Bolivarian Republic of Venezuela, which stipulates that:
“Article 250. The supervising judge, at the request of the Public Prosecution Service,
may order the pretrial detention of the accused provided that the existence of the
following can be proven:
1.
A punishable act warranting a custodial sentence in respect of which criminal
proceedings are not clearly time-barred;
2.
Substantiated evidence that the accused has been the perpetrator of or
participated in the commission of a punishable act;
3.
A reasonable presumption, having regard to the specific circumstances of the
case, that the accused might abscond or obstruct efforts to establish the truth in
respect of a specific measure of investigation.
(…)
In exceptional cases requiring immediate action, and provided that the conditions
laid down in this article are met, the supervising judge, at the request of the Public
Prosecution Service, shall authorize the suspect’s arrest by any suitable means.”
20.
In Mr. Osío Zamora’s case, no risk of flight or obstruction of justice was ever
demonstrated. The source further maintains that, as Mr. Osío Zamora was away from
Econoinvest’s head office at the time of the raid, he could have attempted to abscond at that
time but did not do so. Instead, he immediately presented himself before the authorities.
21.
On 11 April 2011, a preliminary hearing was held in the thirteenth court of first
instance responsible for the criminal court circuit of the Caracas Metropolitan Area before
the temporary judge, Robinson Vásquez. The judge ordered that public oral proceedings be
initiated in Mr. Osío Zamora’s case, after dismissing applications for annulment, exceptions
and revocation of the detention order. The source explains that the judge substituted the
charge of criminal association, which is an offence established in the Organized Crime Act,
by one of conspiracy, which is an offence established in the Criminal Code. The charge of
illegal foreign currency trading, as defined in the revised Act on Illegal Foreign Exchange
Transactions, was maintained.
22.
Mr. Osío Zamora’s defence counsel lodged an appeal against the custodial measure
which was rejected by the Appeal Court. He also asked the thirteenth court of first instance
responsible for the criminal court circuit of the Caracas Metropolitan Area to re-examine
and review the custodial measure and replace it with a less detrimental one. This appeal
was also rejected by the court in question. He also filed a request for cognizance with the
Criminal Division of the Supreme Court which is still pending.
23.
The source believes that Mr. Osío Zamora’s detention is contrary to domestic and
international law, and therefore arbitrary. With regard to the possibility that his detention
was politically motivated, the source notes that the interventions started and directors of
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brokerage firms began to be arrested soon after the highest authority of the State expressed
his hostility to such institutions. The Government-supported communication media
subsequently launched a campaign in which Econoinvest’s directors were referred to as
criminals on the basis of the raids carried out and the criminal proceedings brought against
them. Programmes broadcast by these channels gave the impression that the persons
concerned had already been tried and convicted. Since such campaigns and accusations can
influence the bodies responsible for the administration of justice, such a situation is alleged
to constitute a failure to comply with international standards concerning the right to a fair
trial before an independent and impartial tribunal, with due respect for the right to be
presumed innocent and to guarantees of due process.
24.
In relation to the irregularities that apparently characterized the detention, the source
draws attention to the lack of chronological order between the date of search warrant No.
015/10, which was signed by the judge of the sixteenth criminal court of first instance and
issued on 21 May 2010, and the date of the document requesting the issue of a search and
seizure warrant, which was submitted to the same judge, signed by public prosecutors of
National Public Prosecution Service Offices nos. 23 and 61 and dated 22 May 2010. It
would appear, therefore, that the application for a search warrant was made after the
warrant itself had been issued.
25.
The source also emphasizes that Mr. Osío Zamora was detained without an arrest
warrant. The source recalls in this connection that article 49 and article 44, paragraph 1, of
the Constitution of the Bolivarian Republic of Venezuela establish that no person shall be
detained without a warrant issued by a competent and impartial judge. Since Mr. Osío
Zamora was detained without a warrant, his detention was illegal and arbitrary and contrary
to the basic principles established in article 9, paragraphs 1 and 2, of the International
Covenant on Civil and Political Rights.
26.
Furthermore, quoting from the court record of the oral proceedings of the
defendant’s case that took place in the sixteenth court of first instance on 29 May 2010, the
source notes that:
“The defendants’ arrest was occasioned by the raid on Econoinvest’s offices.
However, there is no record of a court order for their arrest having been issued by
any of the methods established in the Code of Criminal Procedure nor, moreover,
anything to suggest that that they were caught in flagrante delicto since, as both the
Public Prosecution Service and the defence counsel have noted, the acts under
investigation are not acts that have only just been committed. This court is therefore
of the opinion that the actions of the criminal investigation police breached
constitutional limits and that this arrest should be declared null and void for failing
to satisfy the requirements established in article 44 of the Constitution.”
27.
Due process was clearly violated at the cost of Mr. Osío Zamora’s personal liberty,
as the court itself indicates that his arrest and the actions of the investigative police were in
breach of constitutional limits. However, even though this opinion had been expressed in
court, instead of ordering the detainee’s release, the court ordered that he be held in pretrial
detention on the basis of actions that did not constitute offences at the time they were
performed.
28.
The court also overlooked the fact that between 24 and 28 May 2010 Mr. Osío
Zamora was deprived of his liberty without an order from any judicial authority. It was not
until six days later, on 29 May 2010, that his deprivation of liberty as a precautionary
measure was sanctioned by the court. The court also overlooked the fact that pretrial
detention should be used on an exceptional basis only and not as a general rule.
29.
The arbitrary nature of Mr. Osío Zamora’s detention was aggravated by the alleged
retroactive application of criminal law.
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30.
The source also claims that it has proved impossible to find any legal basis justifying
Mr. Osío Zamora’s detention. On this point, the source recalls that Mr. Osío Zamora is
accused of having committed two offences — illegal foreign currency trading and criminal
association — by having traded in TICC bonds through Econoinvest. The transactions at
the origin of the Public Prosecution Service’s charges were carried out on 23 January 2010
and 10 May 2010. The nature and form of the transactions in question were expressly
regulated in an exemption specifically established in article 9 of the 2007 Act on Illegal
Foreign Exchange Transactions which stipulated that bond transactions, irrespective of their
amount, should not be considered illegal foreign exchange transactions.
31.
This legal provision was amended on 17 May 2010. The amended text gives the
Central Bank of Venezuela exclusive competence to buy and sell foreign currency of any
amount and, as of this date, bond transactions no longer benefit from the exemption. Thus,
it is only since 17 May 2010 that trading in bonds has no longer been legal.
32.
Mr. Osío Zamora is being held in pretrial detention for actions that, at the time of
their execution, did not constitute offences. The Act on Illegal Foreign Exchange
Transactions is being applied to Mr. Osío Zamora retroactively, in clear violation of his
right to due process of law and the recognized principle of criminal law of nulla poena sine
lege.
33.
The source also makes reference to the charge of criminal association brought
against Mr. Osío Zamora, which is an offence defined in the Organized Crime Act. The
source believes that this charge is inconsistent with the actions for which prosecution is
sought since this offence is defined under the Organized Crime Act as an act or omission
committed by three or more persons, associated for a period of time with the intention of
committing the offences defined in the Act. The offences with which Mr. Osío Zamora is
charged are apparently defined in another law, the Act on Illegal Foreign Exchange
Transactions. In this connection, the thirteenth judge of the criminal court of first instance
responsible for the judicial district of the Caracas Metropolitan Area changed the offence
from “criminal association” to “conspiracy”, an offence which is defined and punished
under article 286 (or 287) of the Criminal Code and entails the association of two or more
persons for the purpose of committing criminal acts.
34.
The allegedly criminal acts with which Mr. Osío Zamora is charged were expressly
permitted by law until 17 May 2010, that is, until after the date on which the now illegal
acts allegedly took place. For this reason, the source concludes that even if it were shown
that Mr. Osío Zamora was acting in association with others when engaging in conduct that
is now defined as criminal, the fact that the acts only become illegal after they took place
must not be lost from sight; otherwise, the courts would be sanctioning retroactive
application of the law.
35.
Lastly, the source asserts that the consolidation of proceedings against directors of
five separate brokerage firms, including Econoinvest Casa de Bolsa, C.A., accused of
different offences with similar legal definitions — illegal foreign currency trading and
criminal association — is also a violation of due process. The source notes in this
connection that no evidence or accusation either that the directors of the different brokerage
firms had a prior agreement to perform the alleged acts, or that there is any link between the
different acts, has been brought. Furthermore, the proceedings were apparently consolidated
without due consideration, since there is no record explaining or substantiating their
consolidation in the case file.
36.
According to the source, a number of defendants are being tried for different acts.
This creates undue complications that could affect their right to be tried without undue
delay. The source concludes that these factors have repercussions for the level of
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expeditiousness, attention to detail and investigation that the court can afford to the
different cases.
37.
The source concludes that Mr. Osío Zamora’s detention is arbitrary.
Response of the Government
38.
The Working Group regrets that the Government has provided no information
concerning its response to the source’s allegations.
Considerations of the Working Group
39.
Since the Government did not reply to the communication transmitted, the Working
Group is rendering the following opinion based on the facts as submitted by the source.
40.
The source maintains that the businessman and lawyer Mr. Miguel Eduardo Osío
Zamora, Legal and Compliance Director of the brokerage firm Econoinvest Casa de Bolsa,
C.A., was deprived of his liberty on 24 May 2010, without a warrant, by police officers
belonging to the Organized Crime Division of the Scientific, Criminal and Forensic
Investigation Unit (CICPC) attached to the Ministry of People’s Power for Internal
Relations and Justice during a police raid at the offices of the company, which specialized
in foreign currency trading and other legitimate financial transactions. The source adds that
the search warrant was issued on 21 May 2010 by the provisional judge of the sixteenth
court of first instance responsible for the criminal court circuit of Caracas Metropolitan
Area. Mr. Osío Zamora’s detention was sanctioned on 29 May 2010. The source claims that
the search warrant was issued before any request from the Public Prosecution Service had
been received. The request was submitted the day after the warrant was issued. The public
prosecutors justified the lack of an arrest warrant by alleging that the detainee was caught in
flagrante delicto.
41.
Mr. Osío Zamora was charged with illegal foreign currency trading and criminal
association.
42.
The alleged offences consisted of transactions in TICC bonds issued by the State in
both bolivares and United States dollars. Such transactions had been carried out by all
brokerage firms since the end of 2007 and were expressly authorized by the Central Bank
of Venezuela and the National Securities Commission. Both institutions had audited the
company on numerous occasions in the past. The 2007 Act on Illegal Foreign Exchange
Transactions permitted such transactions, which were regulated by Central Bank
provisions. The Act stipulated that: “Any person who, in one or more transactions, in the
same calendar year and bypassing the Central Bank of Venezuela, buys, sells or in any way
offers, disposes of, transfers or receives foreign currency in an amount of between 10,000
and 20,000 United States dollars, or its equivalent in another currency, shall be fined twice
the amount of the transaction, or its equivalent in bolivares. When, in the above
circumstances, the transaction amounts to more than 20,000 United States dollars, or its
equivalent in another currency, the penalty shall be imprisonment of from 2 to 6 years and a
fine equivalent in bolivares to twice the amount of the transaction.” No irregularities were
identified in any past audit of Econoinvest.
43.
The legal text quoted above indicates that while foreign exchange transactions in
amounts of less than 20,000 United States dollars that were carried out “bypassing the
Central Bank of Venezuela” before 17 May 2010 — the date on which the law was
amended — could attract penalties, the penalties were financial only and did not under any
circumstances include custodial sentences. Only transactions in amounts exceeding this
threshold carried custodial sentences.
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44.
The source’s claim that the transactions challenged by the prosecutors took place
before 17 May 2010, and specifically that they were carried out between 23 January 2010
and 10 May 2010, has not been contested by the Government.
45.
In any case, the Government has provided no evidence to demonstrate either that the
transactions which Mr. Osío Zamora is accused of making before 17 May 2010 were in
amounts exceeding 20,000 United States dollars or their equivalent in other currencies or
that he carried out foreign exchange transactions after 17 May 2010, the date after which
foreign currency trading in any amount became illegal and any person engaging in any
form of foreign exchange transaction was liable to imprisonment. In these circumstances, if
it could be proven that the transactions that Mr. Osío Zamora is accused of making took
place before the new law entered into force on 17 May 2010, the principle of nullum crimen
sine lege, nulla poena sine lege, which is the cardinal principle of contemporary criminal
law and is incorporated in both the Universal Declaration of Human Rights (art. 11, para. 1)
and the International Covenant on Civil and Political Rights (art. 15), would have been
violated.
46.
Mr. Osío Zamora was arrested without a warrant. It is true that he is alleged to have
been caught in flagrante delicto. However, the account of events (existence of a prior search
warrant, presence of police officers and public prosecutors at Econoinvest’s offices, and
arrest instructions issued to police officers) indicates that he should have been brought
promptly before a judge. However, this did not occur until 29 May 2010, when his
detention was sanctioned by the court (article 9 of the Covenant).
47.
Mr. Osío Zamora’s defence counsel used various remedies in an attempt to restore
his rights, and specifically his right to personal liberty. An appeal against the Appeal
Court’s previous decision was rejected. An application for a review of his pretrial detention
was also rejected. Mr. Osío Zamora was also denied his right to appear free in court for
trial, even if on bail or subject to some alternative precautionary measure. An application
was also submitted to the Criminal Division of the Supreme Court, but this has still not
been resolved. All these remedies were ineffective, in contravention of the provisions of
article 8 of the Universal Declaration and article 2, paragraph 3, and article 9, paragraph 4,
of the Covenant.
48.
The disregard for the rights mentioned above also constitutes a violation of the right
to be presumed innocent and the right to be tried without undue delay and in a reasonable
time (Universal Declaration, art. 11, para. 1, and Covenant, art. 14, para. 2).
Opinion of the Working Group
49.
In light of the foregoing, the Working Group renders the following Opinion:
(a)
Miguel Eduardo Osío Zamora’s deprivation of liberty is arbitrary and falls
into Category III of the criteria used in considering cases submitted to the Working Group
as it violates the human rights established in articles 3, 7, 8, 9, 10 and 11 of the Universal
Declaration of Human Rights, and article 2, paragraph 3, and articles 9, 10, 14 and 15 of the
International Covenant on Civil and Political Rights;
(b)
Consequent upon the Opinion rendered, the Working Group requests that the
relevant authorities of the Bolivarian Republic of Venezuela grant the accused’s immediate
release, although he may remain subject to guarantees to appear for trial, at any other stage
during the judicial proceedings and, should the occasion arise, for execution of judgement.
[Adopted on 30 August 2011]