A/HRC/WGAD/2015/27

United Nations

A/HRC/WGAD/2015/27

General Assembly

Distr.: General

2 November 2015

English

Original: Spanish

GE.15-19020 (E) 241115 251115

*1519020*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-third session (31 August-4 September

2015)

Opinion No. 27/2015 concerning Antonio José Ledezma Díaz

(Bolivarian Republic of Venezuela)

1.

The Working Group on Arbitrary Detention was established pursuant to

Commission on Human Rights resolution 1991/42. Its mandate was then extended and

clarified under Commission resolution 1997/50. The Human Rights Council assumed

the mandate in its decision 2006/102 and extended it for a three-year period under

Council resolution 15/18 of 30 September 2010. The mandate was extended for a

further three years under Council resolution 24/7 of 26 September 2013.

2.

In accordance with its methods of work (A/HRC/30/69), on 11 May 2015 the

Working Group transmitted to the Government of the Bolivarian Republic of

Venezuela a communication concerning Antonio José Ledezma Díaz. The Government

did not reply to the communication from the Working Group. The State is a party to

the International Covenant on Civil and Political Rights.

3.

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 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 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);

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(e)

When the deprivation of liberty constitutes a violation of 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, or 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

4.

The source reports that Mr. Ledezma, a Venezuelan national, born in San Juan de

los Morros, Guárico State, on 1 May 1955, is a lawyer and a public management

specialist. He is the mayor of the Metropolitan District of Caracas and is resident in

Caracas. On 19 February 2015, he was arrested at his office in the Torre EXA

building, Avenida Libertador, Urbanización El Rosal, municipio Chacao, Centro

Financiero, Caracas.

5.

The source states that the arrest took place after the municipality’s offices had

been entered by heavily armed members of the Bolivarian National Intelligence

Service (SEBIN), who made excessive and unnecessary use of force, even going so far

as to push and hit the Metropolitan Mayor. The officers did not show a judicial

warrant for either the arrest or the forcible entry and they did not inform Mr. Ledezma

of the reasons for his detention. They did not present any written instructions or

documentary proof that they were officials of the Venezuelan State. They could be

identified as officials simply because they were wearing jackets with the SEBIN logo.

The use of SEBIN to arrest Mr. Ledezma was unlawful, because SEBIN has no

competence to act as judicial police.

6.

After his arrest, Mr. Ledezma was taken to the SEBIN headquarters in Plaza

Venezuela. Twenty-four hours after his arrest, Mayor Ledezma was informed that his

detention had been ordered by the Sixth Court of the Criminal Court Circuit of

Caracas. The facts on which the judge based his detention order were the

dissemination of a public announcement (communiqué) calling on Venezuelans to seek

a transitional government by constitutional means. The text was also signed by the

leader of the political opposition Leopoldo López and the ousted deputy, María Corina

Machado.

7.

The source says that Miguel Graterol, the judge of the Sixth Court of the

Criminal Court Circuit of Caracas, who ordered the arrest, is a provisional judge, in

other words he is a temporary official who can be removed from office at any time.

Katherine Harrington and José Luis Orta, the prosecutors who charged Mr. Ledezma,

are also temporary staff. Neither of them obtained their post through a competition and

they are not established civil servants. The source reports that there is general concern

within the country that the judiciary is not independent and that judicial officials have

little or no autonomy.

8.

On the day that the Metropolitan Mayor was arrested, Nicolás Maduro, the

President of the Republic, told the media that Mr. Ledezma “will be tried for crimes

against the peace of the country and against the Constitution”. For several months,

through statements to the media, senior members of the executive and legislative

branches and Luisa Ortega Díaz, the Attorney General, had been accusing Mr.

Ledezma of taking part in alleged conspiracies against the Government. The source

infers that Mr. Ledezma’s right to the presumption of innocence has been violated and

that he has been treated as a criminal from the outset.

9.

On 20 February 2015, Mr. Ledezma was informed that his arrest was based on

the alleged commission of the offences of conspiracy (set out in article 132 of the

Criminal Code) and criminal conspiracy (set out in article 37 of the Organized Crime

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and Financing of Terrorism Act). These offences carry maximum sentences of up to 26

years’ imprisonment.

10. The source contends that these offences do not pertain to the present case. The

offence of conspiracy pertains solely to persons who attempt to change the republican

form of government that the nation has adopted. Moreover, in accordance with the

well-established case law of the Supreme Court of Justice and the doctrine of the

Public Prosecution Service, the offence of criminal conspiracy is, under Venezuelan

legislation, fundamentally economic in nature and presupposes that the perpetrator is

seeking to obtain economic or material gain.

11.

Mr. Ledezma was detained in the Centro Nacional de Procesados Militares

(CENAPROMIL), also known as the Ramo Verde military prison, located at Los

Teques in Miranda State, which is guarded by members of the armed forces and the

Directorate General of Military Intelligence (DGIM). It is a prison for service

personnel, where, however, other civilian political leaders of the opposition, such as

Leopoldo López, Daniel Ceballos and Enzo Scarano, are incarcerated. Like the other

people mentioned, Mr. Ledezma was placed in solitary confinement.

12. According to the source, Mr. Ledezma’s deprivation of liberty was due

exclusively to political motives. The sole reasons for Mr. Ledezma’s arrest and

continued detention were his signing of a public communiqué that criticized the

Government and his political activities as leader of the opposition. Ever since he took

up his duties as Metropolitan Mayor of Caracas, and even during the lead-up to his

election, Mr. Ledezma was harassed by the Government; he was stripped of essential

functions pertaining to the metropolitan municipality and acts of vandalism were

carried out by paramilitary groups attached to the Government against the Mayor’s

office, its staff and its equipment. The organizations Che Guevara, Frente

Revolucionario Socialista Waraira Repano, Frente Bolivariano Jirahara and Corredor

Noroeste took part in acts of aggression and attacks on the Metropolitan Mayor ’s

office.

13. This harassment reportedly continued during Mr. Ledezma’s term of office, when

the National Assembly approved, thanks to the votes of the pro-government majority,

two laws stripping the Metropolitan Municipality of most of its functions, powers and

revenue budget.

14. Mr. Ledezma’s counsel have appealed against the decision of the Sixth Court of

the Criminal Court Circuit ordering Mr. Ledezma’s deprivation of liberty and against

the interlocutory judgement containing the grounds of the case. They have also

applied to the Supreme Court, requesting removal of the case, in view of the fact that

it is incumbent upon the Court at the outset to determine whether there are good

grounds to send Mr. Ledezma to trial. Their appeals have, however, met with no

judicial response whatsoever.

15. On 26 April 2015, Mr. Ledezma’s health seriously deteriorated in the military

prison owing to the reappearance of an inguinal hernia and he had to undergo a

delicate surgical operation. He is currently under house arrest while recovering from

the operation and waiting for the possible start of the trial.

16. The source draws attention to the uncertainty in the country surrounding the

principle of the separation of powers and the lack of independence and autonomy of

the judiciary and the Public Prosecution Service, which rely on instructions from the

executive branch in cases that might be of a political tenor. In support of this

statement, the source cites the concluding observations of the Human Rights

Committee on the third periodic report of Venezuela (CCPR/CO/71/VEN, para. 13),

the addendum to the report of the Working Group on the Universal Periodic Review

relating to the Bolivarian Republic of Venezuela (A/HRC/19/12/Add.1) and various

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reports of the Inter-American Commission on Human Rights, including its Annual

Report 2011.1

17. According to the source, the detention of Mr. Ledezma also undermines the

political rights of the residents of Caracas who elected him Metropolitan Mayor. His

arrest took place against a background of popular discontent about the serious

socioeconomic situation and the Government’s mismanagement, which have triggered

several peaceful protests.

18. According to the law, before regional governors are put on trial, they have the

right to a preliminary hearing on the merits of their case. The case law of the Supreme

Court places the Metropolitan Mayor on the same footing as state governors. Mr.

Ledezma has been deprived of his right to be heard before being placed in detention,

his right to a natural judge and his right to due process.

19. In addition, Mr. Ledezma’s rights to the presumption of innocence, due process

and defence have been breached.

20. The Code of Criminal Procedure provides that evidence collected at the

investigative stage is confidential. However, alleged evidence against Mr. Ledezma

has been divulged in the media by senior members of the executive and legislative

branches.

21. The source adds that proceedings against Mr. Ledezma are a form of

discrimination on account of his political ideas and the political and municipal work

that he has done. This shows up the arbitrariness of his detention.

22. After the President of the Republic, Mr. Ledezma is the official who received the

highest number of votes in the country. His deep connection with the country is

beyond question. There is therefore no danger of his absconding. However, in order to

keep Mr. Ledezma in pretrial detention, the court is using the specious and

contradictory argument that, since he has a permanent job, he has more economic

opportunities for absconding.

23. The source concludes that Mr. Ledezma has been detained solely because he

exercised his political rights and the freedoms of thought, opinion, expression,

assembly and association to which he is entitled. His detention is arbitrary under

categories I, II, III and V, as applied by the Working Group, and contrary to the

provisions of articles 7, 9, 10, 13, 14 and 18 to 21 of the Universal Declaration of

Human Rights and articles 9, 12, 14, 18 to 22 and 25 to 27 of the Covenant, to which

the Bolivarian Republic of Venezuela is a party. It is also contrary to article 44,

paragraph 2, of the Political Constitution of the Bolivarian Republic of Venezuela.

Response from the Government

24. The Government has neither replied to the communication transmitted to it nor

requested an extension of the time limit for presenting a response. The Working Group

regrets the Government’s lack of cooperation and must therefore give its opinion on

the basis of allegations that it considers prima facie to have merit.

25. Furthermore, since the information supplied by the source has not been

contradicted by the Government, despite the fact that it had an opportunity to do so,

the Working Group issues this opinion using all the data that have been gathered, in

accordance with paragraph 15 of its methods of work.

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1 Available on www.oas.org/en/iahcr/docs/annual/2011/TOC.asp Chapter IV, paras. 447 and 541.

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Discussion

26. From the information received, the Working Group notes that the officers who

arrested Mr. Ledezma did not identify themselves as State officials with the authority

to perform duties related to the legal deprivation of liberty, inform him of the reasons

for his detention or show a written arrest warrant issued by a competent authority, in

violation of article 9, paragraph 2, of the Covenant.

27. Moreover, 24 hours after his arrest, Mr. Ledezma was informed that the warrant

had been issued by the Sixth Court of the Criminal Court Circuit of Caracas with the

aim of prosecuting him for disseminating a public announcement that called on

Venezuelans to seek a transitional government by constitutional means, which would

constitute a violation of his right to freedom of opinion and expression.

28. The Working Group received information — not denied by the Government of

the Bolivarian Republic of Venezuela — to the effect that the offences of conspiracy

(set out in article 132 of the Criminal Code) and criminal conspiracy (set out in article

37 of the Organized Crime and Financing of Terrorism Act) of which Mr. Ledezma is

accused do not pertain to the present case. The offence of conspiracy applies solely to

persons who attempt to change the republican form of government, while the

legislation in force, the case law of the Supreme Court of Justice and the doctrine of

the Public Prosecution Service establish that the offence of criminal conspiracy is

fundamentally economic in nature, which means that the defendant must be shown to

have benefited economically or materially. The Government did not provide

information concerning the acts attributed to Mr. Ledezma or his alleged responsibility

for them. The purpose of the criminal charges against him is therefore to restrict or

punish the legitimate exercise of his right to freedom of conscience and expression, as

mentioned in paragraph 27 above, in violation of articles 18 to 20 of the Covenant.

29. Owing to his affiliation to the political opposition, Mr. Ledezma was harassed,

after taking up his duties as mayor, by being stripped of essential functions pertaining

to the Metropolitan Municipality and groups close to the Government committed acts

of vandalism against the mayor’s office, its staff and its equipment, all of which

impinges on the political rights set forth in article 24 of the Covenant.

30. In that context, the Working Group was informed that Miguel Graterol, the judge

of the Sixth Court of the Criminal Court Circuit of Caracas who ordered the arrest,

was a provisional judge; in other words, he was a temporary official who could be

removed from office at any time, which is in breach of principles 11 to 14 of the Basic

Principles on the Independence of the Judiciary.2 The prosecutors who charged Mr.

Ledezma (Katherine N. Harrington and José Luis Orta) were also temporary staff, in

violation of guidelines 3 to 7 of the Guidelines on the Role of Prosecutors. 3 Neither of

them obtained their post through a competition and they are not established civil

servants. All this undermines the independence of the judiciary and of the Public

Prosecution Service and diminishes the autonomy of judicial officials.

31. The Working Group is alarmed at the lack of independence and autonomy in the

judiciary and the Public Prosecution Service. It recalls that the Human Rights

Committee, during its consideration of the fourth periodic report of the Bolivarian

Republic of Venezuela,4 expressed concern at the situation of the judiciary in the State

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2 See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders,

Milan, 26 August to 6 September 1985: report prepared by the Secretariat (United Nations

publication, Sales No. S.86.IV.1), chap. I, sect. D.

3 See Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,

Havana, 27 August to 7 September 1990: report prepared by the Secretariat (United Nations

publication, Sales No. S.91.IV.2), chap. I, sect. C, resolution 26.

4 At its 114th session (29 June-24 July 2015).

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party, in particular with regard to its autonomy, independence and impartiality. The

Committee noted with concern that only 34 per cent of judges were tenured, which

meant that the remainder had provisional status and could be appointed and removed

on a discretionary basis. Moreover, the Committee found it regrettable that it had

received no information on the percentage of prosecutors of the Public Prosecution

Service who were tenured and, in that regard, was concerned about reports indicating

that the percentage was very low. The Committee was further concerned about reports

that judges who, in the course of their duties, ruled against the Government faced

adverse consequences. Various delegations expressed similar concerns during the

review of the human rights situation in the Bolivarian Republic of Venezuela as part of

the universal periodic review (see A/HRC/19/12, paras. 30, 88, 96.13, 96.14, 96.16,

96.18, 96.19, 96.20 and 96.21). The Working Group reiterates the words of the

Committee, which recommended that the Bolivarian Republic of Venezuela should

take immediate steps to ensure and protect the full autonomy, independence and

impartiality of judges and prosecutors, and guarantee that they were free to operate

without pressure or interference of any kind. In particular, it recommended that

prompt action should be taken to remedy the provisional status of most judges and

prosecutors.

32. The authorities did not allow the defence to represent their client adequately and

the presumption of innocence was violated through a series of incriminatory

statements directed at the Mayor by public officials before a ruling had been issued.

All of the above is incompatible with the obligations stemming from article 14,

paragraphs 1, 2 and 3 (a), (b) and (d), of the Covenant.

33. Moreover, Mr. Ledezma was deprived of his liberty at CENAPROMIL, also

known as the Ramo Verde military prison, located at Los Teques in Miranda State,

which is guarded by members of the armed forces and DGIM. It is a prison for service

personnel, where, however, other civilian political leaders of the opposition are

incarcerated. In other Opinions, the Working Group has observed that the Constitution

of the Bolivarian Republic of Venezuela establishes that organs of civilian security are

civil in nature (art. 332), which means that there is no legal justification for the

involvement of the armed forces in the detention of civilians. The Working Group

considers that the constitutional provision in question is subject to the views expressed

by the Inter-American Commission on Human Rights in its Report on Citizen Security

and Human Rights, in which countries in the region were advised as follows:

“In the domestic legal system, draw a clear distinction between national

defence as the function of the armed forces, and citizen security as a function of

the police. Make it very clear that because of the nature of the situations they

must deal with, the instruction and specialized training they receive, and the

region’s unfortunate history of military intervention into internal security affairs,

the police have sole responsibility for the functions associated with prevention,

deterrence and lawful suppression of violence, under the oversight of the

legitimate authorities of a democratic government.”5

34. In another report, with which the Working Group also agrees, the Commission

indicated that:

“[…] States need to guarantee that penitentiaries are run and guarded by

qualified, civilian staff, with civil servant status. That is to say, those functions

must be entrusted to an independent security body independent of the military

and police forces, and educated and trained in penitentiary issues. Those

professionals must have been trained in programmes, schools, or penitentiary

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5 Inter-American Commission on Human Rights, Report on Citizen Security and Human Rights

(OEA/Ser.L/V/II, Doc.57), specific recommendation No. 10.

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academies established specifically for that purpose and pertaining to the

institutional structure of the authority responsible for administering the

penitentiary system.”6

35. In the light of the foregoing, the Working Group considers that Mr. Ledezma’s

detention is arbitrary, in that it was imposed because he exercised his rights to

participate in public affairs, to vote and be elected, to have access to public office, to

enjoy freedom of thought, opinion, expression and association, and to receive due

process and a trial by an impartial and independent court, as recognized in articles 8 to

11, 18, 19 and 21 of the Universal Declaration of Human Rights and in articles 9, 14,

18 to 20, 24 and 25 of the Covenant, to which the Bolivarian Republic of Venezuela is

a party.

Disposition

36. The Working Group considers that the detention of Antonio José Ledezma Díaz

is arbitrary under categories I, II and III of its methods of work.

37. Having found Mr. Ledezma’s detention arbitrary, the Working Group

recommends that the Government of the Bolivarian Republic of Venezuela should

release him immediately and grant him fair, full and adequate reparation in accordance

with article 9, paragraph 5, of the Covenant.

38. The Working Group, having identified a consistent pattern of arbitrary detentions

in the Bolivarian Republic of Venezuela from previous Opinions (see Opinions Nos.

10/2009, 31/2010, 27/2011, 28/2011, 62/2011, 65/2011, 28/2012, 56/2012, 47/2013,

26/2014, 29/2014, 30/2014, 51/2014, 1/2015, 7/2015 and 26/2015), urges the

Government to adopt all necessary measures to comply with the Opinions and to

guarantee the right of all Venezuelans and persons living under its jurisdiction not to

be arbitrarily deprived of their liberty. The Working Group also urges the Bolivarian

Republic of Venezuela to give favourable consideration to the request for an official

visit to its territory with the aim of engaging in a constructive dialogue on finding

appropriate and effective measures to deal with the issue of arbitrary detention in the

country.

39. In the light of the allegations received concerning a lack of independence in the

judiciary and among judicial officials in the Bolivarian Republic of Venezuela, the

case will be referred to the Special Rapporteur on the independence of judges and

lawyers for her information and with a view to possible action.

[Adopted on 3 September 2015]

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6 Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of

Liberty in the Americas (OEA/Ser.L/V/II, Doc. 64), para. 193.