A/HRC/WGAD/2011/62

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-second session, 16–25 November 2011

No. 62/2011 (Bolivarian Republic of Venezuela)

Communication addressed to the Government on 15 February 2011

Concerning: Sabino Romero Izarra

The State has been a party to the International Covenant on Civil and Political Rights

since 10 May 1978.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights. The mandate of the Working Group was

clarified and extended in resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102. The mandate was extended 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-mentioned communication to the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when persons are kept in detention after the completion of their

sentence or despite an amnesty law applicable to them) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 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, established 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 subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

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General Assembly

Distr.: General

12 June 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).

Submissions

Communication from the source

3.

According to the source, Mr. Sabino Romero Izarra, who is 46 years of age, a

Venezuelan national and a Yukpa cacique (chief) of the Chaktapa community in the Sierra

de Perijá mountain range, was arrested on the night of 14 October 2009 by officers of the

Scientific, Criminal and Forensic Investigation Unit (CICPC) attached to the Ministry for

Internal Relations and Justice and by officers of the Bolivarian National Guard attached to

the Ministry for Defence, although they did not present an arrest warrant and he was not

charged with any offence by the Public Prosecution Service. Mr Romero Izarra was

deprived of his liberty without having being brought before a special indigenous court,

despite his request for such an appearance in view of his origin.

4.

Mr. Romero Izarra is supposed to be one of the persons responsible for demarcating

land for his community. For this reason, on account of his work and his peaceful struggle to

secure recognition of Yukpa ancestral lands, he is regarded as a highly respected leader in

his community. According to information received, because of his work Mr. Romero Izarra

had previously received death threats and there had been several break-ins at his home.

5.

In order to mark the Day of Indigenous Resistance on 12 October 2009, the

Executive granted three landownership titles to the Yukpa and Kariña indigenous

communities living in the four river basins of the Sierra de Perijá, but only the communities

in the Shirapta basin accepted the titles. The communities in the three other basins — the

Yaza, Tokuko and Negro — are said to have rejected the proposed demarcation both on the

day the titles were granted and during prior evaluations, considering as they did that the

demarcation and the titles granted matched neither the smallholdings, their territory in its

entirety, nor the territorial unity the communities wish to maintain. They contended that the

principle of indigenous territory was not being respected.

6.

The source states that one of the chiefs of the group of communities in the Shirapta

basin — the only one that accepted the titles — is the manager of a branch office of a State-

run coffee producing firm and that the deputy chief of the Shirapta basin is Mr. Tareck Al

Assami, the Minister of Internal Relations and Justice, who is also a manager of the

aforementioned firm.

6.

The source states that on 13 October 2009 a group of indigenous persons from the

Chaktapa community — including Mr. Romero Izarra — visited the Guamo Pamocha

community (both communities live in the Sierra de Perijá) in order to settle a dispute with a

member of that community. However, at approximately 6.30 p.m. there was a clash

between the members of the two communities on the banks of the Guamo Pamocha

community’s section of the Yaza river. In the ensuing brawl, a teenage girl, Mireña

Romero, and Mr. Ever Romero were killed and injuries were sustained by Mr. Juan de Dios

Castro, teenagers Manuel Segundo Romero and Eddy Romero (nephew of Mr. Sabino and

Mr. Olegario Romero), as well as two children, Edixon and Marilyn Romero (the nephew

and daughter respectively of Mr. Sabino Romero).

8.

Mr. Sabino Romero Izarra was injured in the fray and on 14 October 2009 was

hospitalized at the military hospital in Maracaibo (Zulia state) where he was treated for a

gunshot wound on the back of his left shoulder and another on his left wrist.

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9.

On the night of 21 October 2009, while waiting for Mr. Romero Izarra to be

discharged from hospital, his family was notified by a telephone call from the

Ombudsman’s Office that a CICPC squad had just detained Mr. Romero Izarra. At the time

of his arrest, when asked to produce an arrest warrant, the officers said that they did not yet

have one and would present it later.

10.

On 23 October 2009, the court of investigation of the town of Rosario de Perijá, of

the criminal court circuit of Zulia State, ordered pretrial detention as a precautionary

measure, a decision subsequently contested by Mr. Romero Izarra. His appeal, which was

examined on 16 November 2009 by the Second Chamber of the Appeal Court of the

criminal court circuit of Zulia State, was declared inadmissible on 24 November 2009. An

application for amparo filed with the Constitutional Court on 25 February 2010 was

declared inadmissible on 30 July 2010.

11.

Mr. Romero Izarra was accused of the following offences:

(a)

Aggravated homicide for the death of the girl Mireña Romero;

(b)

Conspiracy against the Venezuelan State;

(c)

Attempted aggravated robbery of livestock from Mr. Olegario Romero (a

charge later dropped from the proceedings).

12.

These accusations were based entirely on testimony from Mr. Olegario Rosario’s

family, taken by the CICPC officers, which was disallowed at the investigation stage once

it had been made available to the court of first instance investigating the case in the town of

Rosario de Perijá. The source adds that new evidence was submitted at the hearing, but was

declared null and void. As an example the source cites the case of Alexander Hernández

who had been detained and allegedly tortured in order to force him to incriminate himself in

connection with the events on 13 October 2009.

13.

When the accused were brought before the court, Mr. Romero Izarra invoked article

260 of the Constitution and article 77 of the Code of Criminal Procedure, which read:

“Article 260. The legitimate authorities of the indigenous peoples shall have the

power to apply within their territorial competence levels of administration of justice

based on their ancestral traditions and affecting their members only, in accordance

with their own rules and proceedings, provided the same are not contrary to this

Constitution, law and public order. The manner in which this special competence

shall be coordinated with the national judicial system shall be determined by law.”

“Article 77. Plea of incompetence as to jurisdiction. At any stage of a trial, the court

hearing a case shall be entitled to decline jurisdiction and, by means of a reasoned

decision, refer the case to another court it considers to be competent. …”

14.

The source maintains that, in the present case, the three essential criteria for the

indigenous justice system are fulfilled:

(a)

The parties involved: all are members of the Yukpa indigenous community;

(b)

The scene of the events: they occurred in the Guamo Pamocha community,

which is an indigenous habitat;

(c)

The existence of legitimate authorities in those communities and of

community customs and proceedings for resolving conflicts (the Oshipa or General Council

of Elders with established traditional procedures for resolving conflicts within the

community and enforcing the penalties).

15.

The source indicates that, in the light of the foregoing, a special indigenous court

should be the competent authority in this matter. However, the source reports that the

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ordinary criminal court that was handling the case refused to decline jurisdiction and to

allow Mr. Romero Izarra to be tried by the competent authority of his people.

16.

Mr. Romero Izarra has been deprived of his liberty since he was admitted to

Maracaibo military hospital, whence where he was transferred to the Army’s First Infantry

Division in Maracaibo. After his initial hearing, the procedural court ordered his transfer to

the Fort Macoa detention centre of the Twelfth Brigade of the Caribbean Battalion, based in

the municipality of Machiques de Perijá.

17.

The source reports that, since Mr. Romero Izarra was first detained, various acts

have been committed against him and his family. The source alludes to the violation of the

right to personal safety of the detainee’s relatives, and of their gender-related and

indigenous rights at the hands of soldiers based at Fort Macoa, given that Mr. Romero

Izarra’s relatives are made to undress when they visit him at the detention centre. The

source reports that the soldiers attempted to abuse Guillermina Romero, Mr. Romero

Izarra’s daughter, which caused her to stop visiting her father at the detention centre for

fear of being raped. The situation was brought to the attention of the Ombudsman’s Office

in Maracaibo and that of the media on 26 May 2010.

18.

Mr. Romero Izarra was tried for “causing social unrest” in a different jurisdiction,

which was why he was transferred to Trujillo national prison. The transfer has proved

problematic for his relatives, who live in the Sierra de Perijá.

19.

His relatives have also complained that, at some of the hearings they have attended

they have received threats from persons sent by cattle breeders and public servants.

20.

The source also alleges that Mr. Romero Izarra has received numerous death threats

in Trujillo national prison, and where little regard is shown for his ethnic origin and causes

him constant problems. The source also alludes to Mr. Romero Izarra’s refusal to

participate in religious observance alien to his Yukpa culture, which has led to his ostracism

by other inmates. He has on occasion been locked in the bathroom facilities of his cell

block for an entire weekend.

21.

The source reiterates that the aforementioned acts constitute a violation of article

260 of the Constitution, which provides that the legitimate authorities of the indigenous

peoples shall have the power to apply within their territorial competence levels of

administration of justice based on their ancestral traditions and affecting their members

only, in accordance with their own rules and proceedings, provided the same are not

contrary to this Constitution, law and public order.

22.

In the light of the foregoing, the source maintains that Mr. Romero Izarra’s detention

runs counter to domestic legislation and to international norms and is therefore arbitrary.

The source fears that the deprivation of Mr. Romero Izarra’s liberty may be politically

motivated and that the accusations against him may be unfounded and/or false, and alleges

that his right to be presumed innocent and his right to not be arbitrarily deprived of his

liberty have been violated. The source attributes his fear to the fact that Mr. Romero Izarra

and his family have been involved in the fight to demarcate the land of the Sierra Perijá for

more than 20 years. In this connection, the source recalls that it was precisely in 2008 that

Mr. Romero Izarra’s father, who had also been involved in that fight, was murdered.

Following this tragedy, Mr. Romero Izarra became the main leader of the Yukpa people, in

which capacity, he opposed the proposal of the Ministry of Internal Relations and Justice

concerning the demarcation of land in the Sierra de Perijá, given that there had been no

prior consultation with the indigenous peoples of the community on the matter.

Consequently, he refused the government funding allocated to the Yukpa and Sierra de

Perijá Plan, a security and defence plan that, among other things, would entail a military

presence in the area.

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23.

The source also maintains that the authorities have committed various acts that have

jeopardized Mr. Romero Izarra’s right to due process in a number of ways. No arrest

warrant had been issued at the time of his arrest. In fact, the arrest warrant in question was

only issued two days after his transfer to the Army’s First Infantry Division in Maracaibo.

The source further maintains that Mr. Romero Izarra’s right to be judged by an independent

and impartial court has also been violated, emphasizing that since he was first deprived of

his liberty, he has never had access to the assistance of an interpreter who speaks his

language.

24.

The source highlights the crime of conspiracy as one of the motives used to justify

Mr. Romero Izarra’s detention and points out that, in article 287 of the Criminal Code,

conspiracy is defined as “when two or more persons gather for the purpose of committing

an offence”, making it a collective crime the commission of which, by its very nature,

requires the participation of at least two persons. In Mr. Romero Izarra’s case, the

accusation against him is based on the presumption that when he travelled to Guamo

Pamocha with his family, which included two children — his son and niece — who were

injured, they were intent on committing a crime, when, in reality, it is natural for the Yukpa

people to travel in a group.

25.

The source reiterates that Mr. Romero Izarra, like anyone else, has the right to be

tried by an independent and impartial judge. Judges should be independent of the State

institutions when discharging their functions and should be bound only by the law and by

justice.

Response of the Government

26.

The Working Group regrets that the Government did not respond to the source’s

allegations, which were transmitted to it on 15 February 2011.

Considerations of the Working Group

27.

The Working Group has been informed that Mr. Romero Izarra was acquitted in a

ruling handed down at his trial before an ordinary criminal court and regained his freedom

on 3 May 2011.

28.

However, Mr. Romero Izarra was subsequently tried by the indigenous court in

Tokuko in the state of Zulia. The hearing was conducted by Head Chief Reina Ubirichi,

assisted by an elder, Adolfo Maiquichi. The accused and the relatives of the victims were

present at the trial, which was open to the public. The trial established that the only person

present responsible for the acts was Mr. Olegario Romero, who accepted liability. It

became clear that Mr. Sabino Romero Izarra did not participate in or fire shots during the

events under investigation, and those responsible for the two deaths were identified.

According to the source, “for the most part, responsibility rests with public servants of the

Ministry of Internal Relations and Justice and of the Ministry for Indigenous Peoples, who

were intent on stigmatizing Mr. Sabino Romero Izarra and his family”.

29.

The Working Group believes that, although Mr. Romero Izarra has been released, it

is still necessary to make a pronouncement on the deprivation of his liberty, given the

violation of his right to not be arbitrarily detained, his right to be released during the trial,

and his right to be presumed innocent, which are enshrined in articles 3, 5, 7, 8, 9, 10 and

article 11, paragraph 1, of the Universal Declaration of Human Rights; and article 2,

paragraph 3, article 9 and article 14, paragraphs 1, 2 and 3, of the International Covenant on

Civil and Political Rights, to which the Bolivarian Republic of Venezuela has been a party

since 10 May 1978.

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Opinion of the Working Group

30.

In the light of the foregoing, the Working Group renders the following opinion:

(a)

Mr. Sabino Romero Izarra’s deprivation of liberty violated the human rights

enshrined in articles 3, 5, 7, 8, 9, 10 and article 11, paragraph 1, of the Universal

Declaration of Human Rights; and article 2, paragraph 3, article 9 and article 14, paragraphs

1, 2 and 3, of the International Covenant on Civil and Political Rights and was consequently

arbitrary according to category III criteria used in the Working Group’s methods of work.

(b)

Consequent upon Opinion rendered, the Working Group requests that the

Government of the Bolivarian Republic of Venezuela award adequate compensation for the

damage caused by the arbitrariness to which this Opinion refers.

(c)

The Government of the Bolivarian Republic of Venezuela is invited to

collaborate with the Working Group by providing timely information on the allegations

presented.

[Adopted on 22 November 2011]