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.18-01032 (E) 290318 290318
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eightieth session, 20–24 November 2017
Opinion No. 87/2017 concerning Marcelo Eduardo Crovato Sarabia
(Bolivarian Republic of Venezuela)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/36/38), on 10 July 2017, the
Working Group transmitted to the Government of the Bolivarian Republic of Venezuela a
communication concerning the detention of Marcelo Eduardo Crovato Sarabia. The
Working Group requested the Government to submit a response with its observations on the
case by 8 September 2017. On 7 September 2017, the Government requested an extension
to respond to the communication, which was granted. The Government sent information
relating to the case on 9 October 2017, and this was transmitted to the source for additional
comments, which in turn were received on 1 November 2017. 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 him or her) (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 Covenant (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
A/HRC/WGAD/2017/87
General Assembly
Distr.: General
23 January 2018
English
Original: Spanish
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(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Marcelo Eduardo Crovato Sarabia, born in 1966 and a Venezuelan and Argentine
national, is a criminal defence lawyer residing in the municipality of Chacao in Miranda
State. Mr. Crovato Sarabia works with a non-governmental organization (NGO) whose
activities include providing free assistance to individuals who report human rights
violations.
5.
The source reports that on 22 April 2014 Mr. Crovato Sarabia arrived at his client’s
home, located in the municipality of Chacao in Miranda State, to provide him with legal
assistance during a house search conducted by officers of the Scientific, Criminal and
Forensic Investigation Unit. However, while assisting his client, Mr. Crovato Sarabia was
arrested by the Unit’s National Department of Criminal Investigations. The officers did not
present a warrant or any other decision issued by a public authority.
6.
According to the source, on 22 April 2014, Mr. Crovato Sarabia was taken to the
headquarters of the Scientific, Criminal and Forensic Investigation Unit in Caracas. He was
later transferred to the premises of the Unit’s Special Operations Brigade, located in San
Agustín del Sur in the municipality of Libertador in the Capital District of Caracas.
7.
The source explains that provisional prosecutor No. 59 of the Public Prosecution
Service of the Caracas Metropolitan Area then issued a telephone order for Mr. Crovato
Sarabia to be detained. During the suspect’s hearing, held from 24 April 2014 to 26 April
2014 before the first instance supervisory court No. 9 of the Caracas Metropolitan Area
Criminal Court Circuit, the judge accepted the initial classification of the offences
presented by the prosecutor of the Public Prosecution Service on the grounds that Mr.
Crovato Sarabia was allegedly involved in the commission of the following offences: (a)
obstructing the public highway, an offence provided for and punishable under article 357 of
the Criminal Code; (b) incitement to disobey the law, an offence provided for and
punishable under article 285 of the Criminal Code; (c) public intimidation, an offence
provided for and punishable under article 296 of the Criminal Code; and (d) criminal
association, an offence provided for and punishable under article 37 of the Organized
Crime and Financing of Terrorism Act. The source points out that the court declared the
detention invalid under article 175 of the Code of Criminal Procedure as it constituted a
violation of fundamental rights. However, it decided to uphold pretrial detention on the
aforementioned charges.
8.
On 30 April 2014, court No. 9 ordered a change in the place of detention at the
request of the Public Prosecution Service, and sent Mr. Crovato to the Rodeo II detention
centre in Guatire in the State of Miranda. From there, Mr. Crovato Sarabia was transferred
to the Yare III detention centre in San Francisco de Yare, Miranda State, as an accused
person awaiting a preliminary hearing. On 26 February 2015, a protective measure of house
arrest was ordered. Mr. Crovato Sarabia was transferred to his current place of detention, at
his usual address, and is under the custody of the Bolivarian National Police.
9.
The source adds that the preliminary hearing is intended to determine whether there
is sufficient evidence to send the case to trial, and that under Venezuelan law and
international standards, the hearing should take place promptly and transparently. However,
this hearing has been postponed 32 times. In the absence of a preliminary hearing, the court
has kept the custodial measure in place indefinitely. At the time of the submission of this
communication, it had been in place for two years and two months — which constitutes a
de facto sentence without a conviction.
10.
The source notes several steps taken before the courts to verify the lawfulness of the
detention. On 7 May 2014, an appeal was lodged with first instance supervisory court No. 9
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of the Caracas Metropolitan Area Criminal Court Circuit. Chamber No. 4 of the Appeals
Court of the criminal court circuit of the Caracas Metropolitan Area issued a ruling on 17
June 2014 upholding the contested decision and consequently the measure of pretrial
detention imposed by court No. 9.
11.
On 4 December 2015, Mr. Crovato Sarabia’s defence requested the review and
substitution of the measure of house arrest. The court did not grant the request, however,
and upheld the measure of house arrest. The defence also filed an application for
constitutional amparo for denial of justice in December 2015. On 19 December 2016, a
year after it had been submitted, the application for amparo was denied.
12.
On 27 April 2016, Mr. Crovato Sarabia’s defence filed an application for the
measure of house arrest to be curtailed given that he had been in detention for two years
without a preliminary hearing, citing article 230 of the Code of Criminal Procedure
(proportionality), coupled with the fact that the Public Prosecution Service had not
requested an extension of the custodial measure. The source reports that, although court No.
9 had agreed to try Mr. Crovato Sarabia’s case separately, given that due to his health
condition he could not attend the continuation of his preliminary hearing (Mr. Crovato
Sarabia had two back operations during his period of detention), on 11 January 2017, the
court annulled the separation decision. On 30 January 2017, the same court refused the
request for curtailment of the measure of house arrest. Finally, on 14 February 2017, an
action was filed for revocation of the decision denying the request for curtailment. No
response has been received to date.
13.
The source maintains that Mr. Crovato Sarabia’s detention is arbitrary under
categories I, II, III and V of the methods of work. In relation to category I, the source notes
that the arrest took place in the absence of a warrant or a case of flagrante delicto; all the
appeals filed by the defence have been rejected; the preliminary hearing has been postponed
32 times; and the petitioner has been held in detention without a conviction or a trial for
two years and two months, which means it is clearly impossible to invoke any legal basis
justifying his detention.
14.
In relation to category II, the source notes that at the time of his arrest, Mr. Crovato
Sarabia was safeguarding his client’s right to access to justice, liberty and security, the
presumption of innocence, privacy of the home, and freedom of thought, opinion and
expression. At the same time, Mr. Crovato Sarabia was exercising his right to freedom of
association and to be heard in court. However, Mr. Crovato Sarabia was arrested without a
warrant or being caught in flagrante delicto for having exercised his rights and represented
his client. The source concludes that this constitutes a violation of the rights enshrined in
international standards (articles 8, 10 and 20 of the Universal Declaration of Human Rights
and 2, 9, 14, 17, 19 and 22 of the Covenant) and that the detention is therefore arbitrary
under category II of the methods of work.
15.
In relation to category III, the source notes that Mr. Crovato Sarabia’s detention is
based on judicial proceedings that are patently political, as shown by the actions of the
Government and the line taken in the media by the ruling party, all of which are open
violations of numerous international rules relating to a fair trial. In particular, due to the 32
adjournments that have delayed the trial unreasonably, he has already, without having been
convicted, served a de facto sentence of two years and two months in detention. The failure
to respect the right to be tried without undue delay is of such gravity as to give the
deprivation of liberty of the petitioner an arbitrary character. Consequently, the source
concludes that the detention is arbitrary under category III of the methods of work.
16.
With regard to category V, the source points to a pattern of violations of
international law against human rights defenders in the Bolivarian Republic of Venezuela,
in particular the systematic use of arbitrary detention against persons who are considered
politically inconvenient so as to prevent them from expressing ideas and political opinions
that run counter to government policies. The source alleges that there is evidence of the
Government discriminating against persons who protest against the government. Moreover,
according to the source, the Government punishes the expression of political ideas that are
not in line with those of the regime, as well as peaceful and legitimate protests, going so far
as to restrict those rights by the kind of measure usually associated with the repression of
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acts of violence, propaganda for war, and incitement to national, racial or religious hatred,
all of which are prohibited by law.
17.
Mr. Crovato Sarabia was arrested while acting as defence counsel for his client, who
is now a political prisoner. Furthermore, the source argues that Mr. Crovato Sarabia’s
arbitrary detention was carried out with the aim of persecuting an identifiable group or
collectivity (human rights defenders) on political grounds, and to intimidate him and other
human rights defenders, in violation of international law. The source highlights the political
nature of the detention and notes that the Government, in collusion with the justice
authorities, seeks to persecute political dissidents and their defenders, thereby committing
violations of international law by reason of discrimination based on political opinion,
ignoring the principle of equality of human rights. The source concludes that Mr. Crovato
Sarabia’s detention is arbitrary under category V of the methods of work.
Response from the Government
18.
The Government indicates that Mr. Crovato Sarabia was arrested in the municipality
of Chacao in the State of Miranda on 22 April 2014. According to the police report: “on 22
April 2014, following the arrest of [...] on basis of evidence of a potential crime seized
during the house search, Marcelo Eduardo Crovato arrived at the residence claiming to be
[...]’s lawyer and the officer supervising the search states that at that moment it was realized
that, according to a report of 10 April 2014, this person had attended a meeting in the same
building, where several pieces of evidence of a potential crime were found that had a
rational link to the investigation; the main purpose of that meeting being to plan acts aimed
at destabilizing the Government, with the participation of “Eli” — on that occasion going
by the name of “Marco” — and [...], who were supposedly lawyers; on the basis of which
he made a telephone call to the prosecutor of the Public Prosecution Service, who ordered
that Crovato appear in court together with the other suspects”.
19.
According to the Government, Mr. Crovato Sarabia appeared before the first
instance supervisory court No. 9 of the Caracas Metropolitan Area Criminal Court Circuit
on 24 April 2014. The initial hearing began on 24 April and ended on 26 April 2014, when
court No. 9 ordered a measure of pretrial detention, in accordance with the provisions of the
Code of Criminal Procedure, for the alleged commission of the offences of obstructing the
public highway, incitement to disobey the law, public intimidation and criminal association.
20.
In its decision, court No. 9 analysed the circumstances of Mr. Crovato Sarabia’s
detention, noting the following: “firstly, with regard to the detention of the suspects, the
person ruling should take into account that, in the present case, the individuals appearing at
this hearing have not been detained under an arrest warrant or in flagrante delicto, as
provided for in article 44.1 of our Constitution, and therefore, the appropriate action under
the laws in force is to declare null and void the arrest of the citizens Marcelo Crovato [...],
in compliance with article 175 of the Code of Criminal Procedure”. However, the same
ruling states that “this court expressly notes that it refers to judgment No. 526 issued by the
Constitutional Chamber of the Supreme Court of Justice in 2001, presented by Judge Iván
Rincón Urdaneta, in which it is noted that alleged violations committed by police officers
when arresting an individual cannot be brought before the courts, as the arrest is legitimized
when the individuals appear and are heard in compliance with legal safeguards, which is
what has happened in the present hearing; the situation must therefore be deemed in
flagrante and the evidence available in the case file reviewed”.
21.
The Government reports that Mr. Crovato Sarabia’s defence lodged an appeal
against the decision of court No. 9 on 7 May 2014. The Appeals Court ruled on the appeal
on 17 June 2014. In deciding on the appeal, the Appeals Court examined the validity of the
order issued by court No. 9 to conduct a house search, on the basis of which Mr. Crovato
Sarabia was arrested, noting that the execution of this order was valid given that it was
carried out within seven days of being issued.
22.
Similarly, the Government notes that the Appeals Court examined the validity of Mr.
Crovato Sarabia’s arrest and indicated that “even in cases where flagrante delicto has not
been proven, this does not mean that the court cannot order the application of an individual
coercive measure … therefore, although Marcelo Eduardo Crovato Sarabia was not arrested
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in flagrante delicto (as was noted by the lower court judge) since the requirements of article
234 of the Code of Criminal Procedure were not met, nonetheless, the alleged violation of
constitutional rights ceases once that order has been issued”.
23.
Furthermore, the Appeals Court also dismissed the claim that Mr. Crovato Sarabia
had been deprived of liberty for performing his duties as a lawyer, arguing that “the arrest
of the suspect Marcelo Eduardo Crovato Sarabia is unrelated to the free exercise of his
profession … it was a coincidence that at the time of his arrest he was preparing to provide
assistance at a house search that had already ended, and that at that very moment he was
identified by one of the police officers as one of the persons who, according to a report by
an undercover agent dated 10 April 2014, had attended a meeting in the same building …,
the main point of which was to plan terrorist acts to destabilize the central Government …;
this was the reason for his arrest, and it had nothing to do with the professional duties he
claimed to be performing at the time”.
24.
The Government notes that the Appeals Court dismissed the request for revocation
of the custodial measure imposed on Mr. Crovato Sarabia, arguing that he was suspected of
involvement in the offences of which he was accused, namely, obstruction of the public
highway, incitement to disobey the law, public intimidation and criminal association. The
Appeals Court also believed that, given the gravity of the acts and the maximum penalties
possible, the accused was a flight risk. In addition, the Court stated that it was reasonable to
assume a risk that efforts to establish the truth might be obstructed since the suspects could
induce witnesses with knowledge of the facts to give false testimony or behave in an
unethical or deceptive manner. In the light of the foregoing, it dismissed the application for
revocation of the pretrial detention.
25.
The Government cites various provisions of the Constitution (art. 44), the Criminal
Code (arts. 285, 296 and 357), the Organized Crime and Financing of Terrorism Act (art.
37) and the Code of Criminal Procedure (arts. 234 and 236–238).
26.
As noted above, the Government indicates that this shows that the detention of Mr.
Crovato Sarabia is in full compliance with the due process guarantees relating to personal
freedom that are set forth in the Covenant, which recognize that there may be legal
restrictions on the right to personal freedom, such as those applied in the present case.
27.
Lastly, the Government reports that, since 26 February 2015, Mr. Crovato Sarabia
has been under house arrest by order of the court.
Further comments from the source
28.
The source submitted comments and observations on the State’s reply on 1
November 2017. The source explains that it is not true that Mr. Crovato Sarabia was
arrested in the municipality of Chacao in Miranda State, where his permanent residence is
located. On the contrary, he was brought under false pretences to the headquarters of the
Scientific, Criminal and Forensic Investigation Unit, located at Avenida Urdaneta, at the
corner of Pelota and Punceres, in Catedral parish in the centre of Caracas, on the pretext
that his client had to go there to sign the search report.
29.
The source indicates that the arrest did indeed take place on 22 April 2014, when Mr.
Crovato Sarabia’s client called him, as his lawyer, at approximately 4 a.m., to inform him
that officers of the Scientific, Criminal and Forensic Investigation Unit were at his door to
conduct a search of his home, and he therefore needed his assistance and legal advice in situ.
Mr. Crovato Sarabia promptly and diligently went to the residence where the search was
being conducted; he was prevented from carrying out his work as a lawyer by the inspector
in charge of the group of officers conducting the search, who stopped Mr. Crovato Sarabia
from entering the residence in which the police operation was being conducted that resulted
in the arrest of his client and other persons present at the time. The source therefore
contends that Mr. Crovato Sarabia was prevented from doing his work as a lawyer and later,
in the same case, went from being a lawyer to being a detainee on arbitrary grounds.
30.
The source notes that Mr. Crovato Sarabia was arrested because he was identified as
one of the individuals mentioned in a prior police report, which had given rise to the
aforementioned house search. The police report mentioned an individual identified as
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“Marco”. However, according to the Government response, a police officer on duty
identified him as the same person as “Marco”. The source points out that, to date, the Public
Prosecution Service has not provided any other information or statement other than that of
the unidentified police officer, to corroborate that “Marco” is in fact Mr. Crovato Sarabia.
31.
The source indicates that the accused’s preliminary hearing began on 24 April and
ended, on 26 April 2014, with a pretrial detention order. However, the source points out
that at that time there was no reasonable or reliable presumption that the offences invoked
had actually been committed. The Government argues in its accusation that a meeting took
place at which it is alleged that the participants planned “obstruction of the public highway”,
“incitement to disobey the law”, “public intimidation” and “criminal association”. However,
the mere fact that an alleged meeting was held hardly shows a causal link with the above-
mentioned offences. In addition, the public prosecutors involved in the hearing decided to
charge Mr. Crovato Sarabia and request the heaviest of all custodial measures, purely on
the basis of the claim by a police officer that a certain “Marco” was in fact Mr. Crovato
Sarabia, contrary to the principle of the right to be tried while at liberty that should prevail
in the Venezuelan criminal process.
32.
The source states that Mr. Crovato Sarabia’s arrest was declared null and void by the
Caracas first instance supervisory court No. 9 because there was no arrest warrant against
him and he was not caught in flagrante delicto; therefore, the court recognized that the
detention was arbitrary and unconstitutional. That is, the courts themselves admitted that
the police officers who carried out the arrest acted arbitrarily. Nonetheless, just moments
after the hearing, the court ignored its own decision and invoked a judgment of the
Supreme Court (No. 526 of 2001), asserting that the violations committed by the arresting
officers could not be brought before the court. The source states that the court found that
the detention was arbitrary and unconstitutional, but did not punish the officers responsible
for unlawfully depriving Mr. Crovato Sarabia of his liberty, instead legitimizing the
offending action by ordering pretrial detention rather than restoring the violated right and
granting him full freedom, as would have been right and proper in law.
33.
The source indicates that, if the Public Prosecution Service intended to subsequently
investigate Mr. Crovato Sarabia, it should have informed him of the charges against him,
guaranteed him timely access to the case file and ultimately allowed him to exercise his
right to a defence, which did not happen in the present case. Rather than pursuing the
criminal investigation, he has been kept in continued detention from 22 April 2014 to date
(more than three and a half years) by means of unjustified postponements of the
preliminary hearings. To date there have been no fewer than 48 unjustified cancellations,
which have allowed the de facto detention to continue without any legal basis.
34.
The source notes that the Government’s response does not clarify why Mr. Crovato
Sarabia was arrested when providing legal assistance to his client. It does, however make
clear that the arrest was related to “undercover operations” and “field operations to infiltrate
gatherings and meetings”. In other words, it accepts the response from the Public
Prosecution Service to the effect that the investigation was related to “gatherings and
meetings” designed to “destabilize the central Government”. In the source’s view, it is clear
that a comparison is being made between the exercise of civil and political rights in the
infiltrated demonstrations, gatherings and meetings and the alleged criminal acts claimed
by the Government. This comparison points to the Government’s real political motivation
for the investigation, by contrast with the arguments in criminal law it put forward in its
reply.
35.
In the source’s view, Mr. Crovato Sarabia was arrested without a warrant and
without being in flagrante delicto. The original arrest was arbitrary, as acknowledged by
the court in declaring the arrest null and void. Therefore, keeping Mr. Crovato Sarabia in
detention is also arbitrary for many reasons, including, as the source highlights, the fact that
there was no legal justification for not observing the principle of trial while at liberty,
which should prevail in the Venezuelan criminal process. Furthermore, in the source’s view,
the detention is arbitrary because there is no legal justification for maintaining a custodial
measure by cancelling the relevant preliminary hearing (during which a decision must be
taken on the accused’s release and the acceptance of the indictment) more than 48 times
over a period of more than three years and six months, when the maximum period allowed
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under Venezuelan law is two years.1 In addition, the source reiterates that the detention is
arbitrary because the government authorities clearly have political reasons for keeping Mr.
Crovato Sarabia in detention, as part of a systematic pattern of using arbitrary detention to
instil fear among political opponents, thus preventing them from expressing ideas and
opinions that are contrary to government policies.
36.
The source concludes by noting that the criminal case against Mr. Crovato Sarabia is
at the preliminary hearing phase, which means that it is not known whether the indictment
will be accepted or not and whether he will be put on public trial; as counsel requested of
the court, the case might be stayed, whereupon the liberty of which he should never have
been deprived would be immediately restored.
Discussion
37.
The Working Group is mandated to investigate all cases of deprivation of liberty
imposed arbitrarily that are brought to its attention. In the discharge of its mandate, it refers
to the relevant international standards set forth in the Universal Declaration of Human
Rights, the Covenant and the relevant international legal instruments, in accordance with its
methods of work.
38.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations.2
39.
The Working Group notes that Mr. Crovato Sarabia was arrested on 22 April 2014
by officers of the Scientific, Criminal and Forensic Investigation Unit while providing legal
assistance to a client. The Working Group further notes that the authorities did not inform
him of the reasons for his arrest and did not present an arrest warrant or other official
documentation issued by a public authority, and nor was he shown to have been in
flagrante delicto. In addition, the Working Group is persuaded that the suspect was brought
before the court on 24 April 2014, i.e. two days after the arrest, but that the preliminary
hearing has still not been held after more than two years, having been postponed on at least
48 occasions, and that proceedings have not been initiated against Mr. Crovato Sarabia.
40.
Consequently, the Working Group is of the view that Mr. Crovato Sarabia’s
detention is arbitrary for lack of any legal basis, in accordance with category I of the
methods of work.
41.
The Working Group is persuaded that, according to the submissions of both sides,
Mr. Crovato Sarabia works with a Venezuelan civil society organization whose activities
include providing free legal assistance to individuals alleging human rights violations.
Given the absence of convincing information on the alleged crimes committed by Mr.
Crovato Sarabia, and his well-known participation in a human rights organization, the
Working Group considers that his detention is related to his work as a human rights
defender. Consequently, the Working Group considers that Mr. Crovato Sarabia’s detention
is arbitrary under category II of its methods of work, as it violates articles 19 to 21 of the
Universal Declaration of Human Rights and articles 19 and 21 of the Covenant.
42.
As previously mentioned, the Working Group is persuaded that the authorities did
not present an arrest warrant or other official documentation issued by a public authority,
and failed to show flagrante delicto. It is also noted that Mr. Crovato Sarabia has not been
informed of the charges against him, as the preliminary hearing for this purpose has been
postponed 48 times. Following the hearing held from 24 to 26 April 2014, the measure of
pretrial detention was imposed. However, in the absence of a preliminary hearing to
1 See article 230 of the Code of Criminal Procedure, which provides that a custodial measure may not
be ordered if it appears disproportionate to the seriousness of the offence and the circumstances of its
commission and the likely penalty. Under no circumstances may it exceed the minimum penalty
provided for each offence or a period of two years.
2 See A/HRC/19/57, para. 68.
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determine whether or not to go to trial, the court has maintained the measure of house arrest
since 26 February 2015.
43.
In 1993, when it issued its deliberation No. 1 on house arrest, the Working Group
noted that it may, in any given case, determine whether house arrest constitutes arbitrary
detention.3 Since that time, house arrest has been equated to deprivation of liberty, to the
extent that the person is in closed facilities and is not allowed to leave. Currently, the
Working Group considers house arrest to be a form of deprivation of liberty to which
consent has not been given.4
44.
The Committee recalls that article 9 (2) of the Covenant establishes that anyone
arrested shall be informed at the time of arrest of the reasons of arrest and of any charges
against him or her. Paragraph 3 of the article also stipulates that anyone arrested or detained
on a criminal charge has to be brought “promptly” before a judge or other officer
authorized by law to exercise judicial power and is entitled to trial within a reasonable time
or to release.
45.
In the present case, these provisions have been violated to the detriment of Mr.
Crovato Sarabia, rendering the detention arbitrary under category III of the methods of
work, as the authorities of the Bolivarian Republic of Venezuela have seriously violated
international standards relating to a fair trial, as set forth in the Universal Declaration of
Human Rights and the Covenant.
46.
On the basis of the information available to it, the Working Group considers that Mr.
Crovato Sarabia’s detention by the Government is also arbitrary under category V,
inasmuch as it is based on political opinion as expressed by his membership of a civil
society organization that is critical of the Government, in violation of international law,
which prohibits discrimination on such grounds, and therefore in violation of the principle
of the equality of human beings.
47.
In addition, the Working Group wishes to recall that under certain circumstances
systematic imprisonment and other serious forms of deprivation of physical liberty in
violation of internationally recognized standards may constitute crimes against humanity.5
48.
In recent years, the Working Group has repeatedly expressed its views on multiple
arbitrary arrests of persons because of their political opposition to the Government, or
because they have exercised their rights to freedom of opinion, of expression, of association,
of assembly or of political participation.6 In the Working Group’s view, it is a systematic
attack or practice by the Government intended to deprive political opponents of their
physical freedom, particularly those who are considered opponents of the regime, in
3 E/CN.4/1993/24.
4 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37).
5 See opinions Nos. 37/2011, para. 15, 38/2011, para. 16, and 39/2011, para. 17 (Syrian Arab Republic);
Nos. 4/2012, para. 26, 47/2012, paras. 19 and 22, 34/2013, paras. 31, 33 and 35, 35/2013, paras. 33,
35 and 37, and 36/2013, paras. 32, 34 and 36 (Democratic People’s Republic of Korea); Nos. 38/2012,
para. 33, and 48/2013, para. 14 (Sri Lanka); Nos. 22/2014, para. 25, 27/2014, para. 32, and 34/2014,
para. 34 (Bahrain); No. 35/2014, para. 19 (Egypt); No. 44/2016, para. 37 (Thailand); and Nos.
32/2017, para. 40, 33/2017, para. 102, and 36/2017, para. 110 (Iraq).
6 Opinions Nos. 52/2017 (Gilbert Alexander Caro Alfonzo), 37/2017 (Braulio Jatar); 18/2017 (Yon
Alexander Goicoechea Lara); 27/2015 (Antonio José Ledezma Díaz); 26/2015 (Gerardo Ernesto
Carrero Delgado, Gerardo Rafael Resplandor Veracierta, Nixon Alfonzo Leal Toro, Carlos Pérez and
Renzo David Prieto Ramírez); 7/2015 (Rosmit Mantilla); 1/2015 (Vincenzo Scarano Spisso); 51/2014
(Maikel Giovanni Rondón Romero and 316 others); 26/2014 (Leopoldo López); 29/2014 (Juan Carlos
Nieto Quintero); 30/2014 (Daniel Omar Ceballos Morales); 47/2013 (Antonio José Rivero González);
56/2012 (César Daniel Camejo Blanco); 28/2012 (Raúl Leonardo Linares); 62/2011 (Sabino Romero
Izarra); 65/2011 (Hernán José Sifontes Tovar, Ernesto Enrique Rangel Aguilera and Juan Carlos
Carvallo Villegas); 27/2011 (Marcos Michel Siervo Sabarsky); 28/2011 (Miguel Eduardo Osío
Zamora); 31/2010 (Santiago Giraldo Florez, Luis Carlos Cossio, Cruz Elba Giraldo Florez, Isabel
Giraldo Celedón, Secundino Andrés Cadavid, Dimas Oreyanos Lizcano and Omar Alexander Rey
Pérez); and 10/2009 (Eligio Cedeño).
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GE.18-01032
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violation of fundamental rules of international law, including the Universal Declaration of
Human Rights and the Covenant.
49.
Lastly, in light of the recurrent pattern of arbitrary detention identified by
international human rights mechanisms in recent years, the Government is urged to
consider inviting the Working Group to make a country visit. Such visits are an opportunity
for the Working Group to engage in direct dialogue with the Government concerned and
with representatives of civil society, with the aim of better understanding the situation of
deprivation of liberty in the country and the underlying reasons for arbitrary detention.
50.
Lastly, in the light of the allegations made by the source concerning violations of the
right to health during the prolonged period of detention, as well as Mr. Crovato Sarabia’s
position as a lawyer and human rights defender, the Working Group has decided to forward
the information to the Special Rapporteur on the right to health, the Special Rapporteur on
the independence of judges and lawyers and the Special Rapporteur on the situation of
human rights defenders for their consideration and possible action.
Disposition
51.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Marcelo Eduardo Crovato Sarabia, being in
contravention of articles 8, 9, 10, 11, 19 and 20 of the Universal Declaration of
Human Rights and articles 2, 9, 14, 19, 21 and 22 of the International Covenant on
Civil and Political Rights, to which the State is a party, is arbitrary and falls within
categories I, II, III and V of the methods of work.
52.
The Working Group requests the Government to take the steps necessary to remedy
the situation of Mr. Crovato Sarabia without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
53.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Crovato Sarabia immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law.
54.
In accordance with paragraph 33 of its methods of work, the Working Group
transmits the present opinion to the Special Rapporteur on the right to health, the Special
Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the
situation of human rights defenders for their consideration and possible action.
Follow-up procedure
55.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on follow-up action
taken on the recommendations made in this opinion, including:
(a)
Whether Mr. Crovato Sarabia has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Crovato
Sarabia;
(c)
Whether an investigation has been conducted into the violation of Mr.
Crovato Sarabia’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the Government with its international obligations in
line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
56.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
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GE.18-01032
57.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
58.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.7
[Adopted on 23 November 2017]
7 See Human Rights Council resolution 24/7, paras. 3 and 7.