Opinion; Subjects: COLOMBIA, 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.19-15969 (E) 171019 211019
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fifth session, 12–16 August 2019
Opinion No. 38/2019 concerning Alexandre Vernot (Colombia)
1.
The Working Group on Arbitrary Detention was established by the Commission on
Human Rights in its resolution 1991/42. In its resolution 1997/50, the Commission
extended and clarified the mandate of the Working Group. Pursuant to General Assembly
resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the
mandate of the Commission. The Council most recently extended the mandate of the
Working Group for a three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 16 January 2019 the
Working Group transmitted to the Government of Colombia a communication concerning
Alexandre Vernot. The Government did not reply to the communication in a timely manner.
The State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group considers that deprivation of liberty is 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);
(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).
United Nations
A/HRC/WGAD/2019/38
General Assembly
Distr.: General
18 September 2019
English
Original: Spanish
A/HRC/WGAD/2019/38
2
GE.19-15969
Submissions
Communication from the source
4.
Mr. Vernot is a Colombian and French national, a lawyer and human rights defender.
The source reports that, in addition to practising law, Mr. Vernot has taken part in
investigations into matters of public interest, as well as in the making and publication of
films, documentaries, books and newspaper or opinion articles. He was a candidate for
mayor of Bogotá and an adviser to a former mayor of that city, and has collaborated with
the political parties Progresismo, Alianza Verde and Partido Liberal.
Detention
5.
According to the source, Mr. Vernot was arrested on 27 September 2018, at the
Andino commercial centre in the city of Bogotá, by officers of the Technical Investigation
Corps. The officers produced a warrant at the time of the arrest. At a hearing on the same
day, he was charged with bribery in the context of criminal proceedings (Criminal Code,
sect. 444), and an application was submitted for a custodial preventive measure, which was
granted by due-process judge No. 31.
6.
The source argues, however, that the real reason for Mr. Vernot’s detention is his
exercise of freedom of expression and his work in defence of human rights. Furthermore, it
is alleged that the restrictions on his liberty are the result of a judicial procedure that was
not fair, independent and impartial, as fundamental guarantees of due process were violated.
Publication of a newspaper article
7.
Regarding the claim that his detention was a result of the exercise of freedom of
expression, the source indicates that Mr. Vernot was arrested three days after the
publication of an investigative article in the weekly La Nueva Prensa on 24 September
2018, in which the Attorney General of Colombia was publicly accused of being involved
in illegal acts.1 While the article was not written by Mr. Vernot, the person who wrote it
was a close colleague and friend of his and has collaborated with him on many occasions in
making films about human rights and other political or public interest issues.
Antitrust action and civil lawsuit against an automobile company
8.
It is alleged that Mr. Vernot’s detention was also motivated by his activities as
defence attorney for one of his clients. This client is president of, and a shareholder in, a
company that sells cars, which was represented in an antitrust action and civil lawsuit by a
team of lawyers led by the current Attorney General of the Nation, when he was practising
law with a law firm. According to the source, it is necessary to look at some of the events
that occurred in this civil lawsuit in order to understand the irregularities surrounding Mr.
Vernot’s detention.
9.
According to the information received, the team of lawyers led by the current
Attorney General agreed with the president of the automobile company to accept a success
bonus as payment for representing him in the antitrust action or lawsuit. In August 2016,
when he was elected to the position of Attorney General, the team leader ceased to
represent the automobile company. The legal mandate was held by the rest of the team from
the same law firm until it was terminated on 30 September 2016, before the case was
resolved. On 7 December 2016, the parties to the judicial dispute reached agreement on a
negotiated settlement. Faced with this, the legal team that had been led by the current
Attorney General demanded payment of the success bonus.
1 La Nueva Prensa, “Fiscal General de Colombia oculta bienes y fondos en España con una empresa
fachada panameña de su propiedad” (Attorney General of Colombia hides property and assets in
Spain through a Panamanian front company he owns), 24 September 2018.
A/HRC/WGAD/2019/38
GE.19-15969
3
Criminal investigation for irregularities in the assignment of the civil case
10.
The source also reports that, in September 2016, a media outlet published an article
claiming there had been irregularities in the assignment of the case in the aforementioned
antitrust action, producing evidence that an offence may have been committed. In light of
this, the Attorney General’s Office reportedly opened an investigation.
11.
In January 2018, the Attorney General’s Office filed criminal charges against a
group of individuals for offences related to interference in the assignment of files in the
antitrust action against the automobile company. On 28 May 2018, the Attorney General
asked to be recused from the case by the Supreme Court, invoking legal ground 4 of article
56 of Act No. 906 of 2004: “Where the judicial officer has been a proxy or defence counsel
for any of the parties.”
12.
On 21 June 2018, the Plenary Chamber of the Supreme Court responded to the
Attorney General’s recusal request, noting that it had verified the existence of “a condition
that may have an impact on the judgment or impartiality of the official or, at least, on the
confidence of the parties to the proceedings and the community at large in the justice
system”. In view of this, the Supreme Court ordered “that the matter be dealt with by the
Deputy Attorney General of the Nation”.
13.
The source points out that the Attorney General was not recused between his
inauguration on 1 August 2016 and 21 June 2018, and that in this period the institution he
headed conducted investigations and proceedings, determined the approach and position of
the Attorney General’s Office as regards the prioritization of the case, established the main
thrust of the investigation, preferred charges and applied for arrest warrants.
14.
According to the source, the case brought by the Attorney General’s Office against
Mr. Vernot’s client is based on statements by accused persons who are being held in
custody and who are allegedly facing prison sentences of up to 15 years. It is pointed out
that they were arrested and charged when the Attorney General was in charge of the
institution responsible for managing the case.
15.
On 1 June 2018, four days after the Attorney General had submitted his recusal
request to the Supreme Court, but before the Court had granted it, the Attorney General’s
Office obtained an arrest warrant for Mr. Vernot’s client, the president of, and a shareholder
in, the automobile company, for allegedly committing various offences. The Office also
obtained a blue tracking notice from the International Criminal Police Organization
(INTERPOL). The Office issued a press release on the issuance of the arrest warrant.
16.
The hearing to arraign and decide on preventive measures for Mr. Vernot’s client
took place on 3–4 October 2018. On this occasion, the defence alleged a lack of due
process, questioning why one of the defence lawyers, Mr. Vernot, had been arrested the
week before the hearing, on 27 September 2018. His arrest intimidated the defence team,
who feared that other members of the team might be arrested while carrying out their duties
(interviewing witnesses and gathering evidence). The Attorney General’s Office charged
the accused with four aggravated crimes: giving or offering a bribe, as the principal
(Criminal Code, art. 407), and, as an accessory, unlawful use of communication networks
(art. 197), abusive access to a computer system (art. 269A) and damage to an information
technology system (art. 269D). At the same hearing, the Attorney General’s Office
requested a custodial preventive measure, which was granted by the due-process judge.
This decision led to the extradition of Mr. Vernot’s client, who was in Spain at the time,
under a red notice issued by INTERPOL.
17.
The source indicates that the Counsel-General’s representative, who was present at
the hearing and was struck by the judge’s imperfect knowledge of the documentation,
intervened to question the nature and purpose of the hearing and to stress the importance of
reviewing the available evidence and verifying the information. The representative asked
the senior judge to annul the hearing and entrust it to a judge who could carry out a direct,
substantive and exhaustive analysis of the evidence and take the corresponding decision.
A/HRC/WGAD/2019/38
4
GE.19-15969
Persecution of lawyers and family members
18.
The source indicates that Mr. Vernot’s case is part of a wider pattern of persecution
against persons close to his client. Members of his client’s family and other members of his
legal team have suffered reprisals.
19.
For instance, the brothers of Mr. Vernot’s client have allegedly been threatened by
the Attorney General’s Office with prosecution if he was not handed over to the Colombian
authorities. Likewise, one of the brothers has been the subject of a criminal investigation in
the so-called “mega-mansions” case, into allegations of fraud and environmental offences.
20.
Meanwhile, lawyers acting for the same client are apparently facing arbitrary
criminal proceedings against a backdrop of preventive custody, disciplinary proceedings
and threats coming directly from the Attorney General’s Office.
21.
One of the lawyers on the same team of legal representatives as Mr. Vernot has
reportedly been followed and had her phone tapped, received threats from the Attorney
General’s Office and had disciplinary proceedings opened against her. On 8 October 2018,
she received three calls from the Attorney General’s Office, and then a text message on her
personal cell phone threatening to put her in jail, telling her, “We’re going to do to you
what we did to Vernot”. The source indicates that the telephone numbers from which the
calls were made are from the Attorney General’s Office, as can be seen on its website.
According to the source, this irregularity has been reported to the Deputy Attorney
General’s Office for undermining the right to a defence in civil proceedings, as well as the
practice of law in Colombia.
22.
The source further reports that the president of the disciplinary chamber ordered the
same lawyer to be investigated for allegedly violating the ethics of the legal profession by
publicly expressing opinions on issues of public interest and commenting on her client’s
case.
23.
According to the information received, another lawyer from the same legal team as
Mr. Vernot and the lawyer referred to above has also received death threats in connection
with the exercise of legal representation.
Criminal case against Mr. Vernot
24.
According to the information received, Mr. Vernot was arrested on the public
highway and brought before a judge. On 27–28 September 2018, the hearing was held
before Municipal Criminal Court No. 49 with responsibility for ensuring due process; at the
hearing, the defence rejected the charges.
25.
According to the source, the Attorney General’s Office claimed, with no evidence to
support its claim, that Mr. Vernot had offered money to an individual held in the National
Model Prison in an attempt to bribe him not to testify against his client (the witness is also a
lawyer and had apparently represented Mr. Vernot’s client in the past). According to the
Attorney General’s Office, the alleged bribe was intended to make the detainee “shut up”
and not involve Mr. Vernot’s client in the criminal case. Subsequently, the judge said that
Mr. Vernot’s criminal responsibility could reasonably be inferred from the statement of the
detained individual whom there had allegedly been an attempt to bribe.
26.
The source states that the persecution of the lawyers in this case is evident, to the
point where, in order to arrest Mr. Vernot, his cell phone was tapped, without a warrant, to
discover his location. It is pointed out that it was the Attorney General’s Office that took
action in these criminal proceedings, not the Deputy Attorney General’s Office, despite the
fact that the Attorney General should have been recused and had no legitimacy to apply for
a preventive measure, as he allegedly had a direct interest in the case.
27.
At the preliminary hearing, the Attorney General’s Office stated that the purpose of
the arrest warrant was to formulate an indictment and request the imposition of a custodial
measure to be served in a prison, in relation to events that allegedly occurred on 8 and 13
August 2018. The arrest warrant was issued for the offence of bribery in the context of
criminal proceedings pursuant to article 444 A of the Criminal Code.
A/HRC/WGAD/2019/38
GE.19-15969
5
28.
In arguing for a preventive measure, the Attorney General’s Office said that it had
sufficient evidence, namely: (a) the statement of the alleged witness who was in detention,
who said that Mr. Vernot offered him money; (b) the interview with another lawyer who
was allegedly present, stating that he heard no such offer being made; (c) a verified call
from Mr. Vernot, in which, according to the witness, the latter only told him that they had
nothing to talk about; and, lastly, (d) proof that Mr. Vernot made a trip to Madrid, where his
client was staying.
29.
The source emphasizes that article 308 of the Code of Criminal Procedure
establishes that one of the conditions for obtaining a custodial measure is that “it can
reasonably be inferred that the accused may be the perpetrator of or participant in the
criminal conduct under investigation”. In the present case, it is claimed that the Attorney
General’s Office reached this conclusion on the basis of illogical, and thus manifestly
arbitrary, reasoning. The assumption that a witness detained as a preventive measure and to
whom the Attorney General’s Office has offered benefits intended to ensure he receives the
minimum penalty, corroborated, according to the Attorney General’s Office, by an
interview with a witness who had not heard the subject of the conversation, by a telephone
conversation that did not take place and by a trip from Spain to Colombia by Mr. Vernot. It
is claimed that this conclusion by the Attorney General’s Office, which was shared by the
judge who decided on the custodial measure, is pure sophistry, a bogus argument glossed
over as the truth.
30.
Mr. Vernot was imprisoned in a maximum security wing of La Picota penitentiary
and prison complex in Bogotá, where visits are highly restricted. The source says that
various Colombian and foreign lawyers have tried to visit Mr. Vernot in the compound but
have been denied access to him.
31.
At the same hearing on 28 September 2018, an appeal was lodged against the oral
judgment issued on the same day. It was heard on 23 November 2018 by Criminal Circuit
Court No. 16 with jurisdiction in the city of Bogotá. At this hearing, according to the source,
it was stated that the imposition of a custodial measure on Mr. Vernot was not
commensurate with the tenuous or questionable evidence produced by the prosecution,
whereas, at this stage of the proceedings, evidence was expected to be probative. In other
words, the use of testimony as supreme proof for an indictment is contrary to the
presumption of innocence, as testimony is subject to cross-examination during the trial,
especially if it comes from a person who has been charged with an offence and is seeking to
have his sentence reduced.
32.
The judge upheld the decision of Municipal Criminal Court No. 49. The source
notes that the decision on the appeal refrained from examining the relevance and
effectiveness of alternative, non-custodial measures, such as release on bail or a ban on
leaving the country.
Category III
33.
In this case, according to the source, the issuance of the custodial measure was a
violation of due process and Mr. Vernot’s right to a defence.
34.
In the first place, the source contends that the proceedings were not impartial or
independent, since it was the Attorney General’s Office that acted in the trial, and not the
Deputy Attorney General’s Office, despite the fact that the Attorney General was
disqualified from the case, having requested the Supreme Court to be recused in a case that
was inseparable from this one. Not to mention that his colleague had been called by the
Attorney General’s Office, with threats “to do to you what we did to Vernot”. It is claimed
that the disqualification of the Attorney General compromised the impartiality of the
prosecutors involved in Mr. Vernot’s detention.
35.
The source emphasizes that article 251 of the Constitution provides, among other
things, that: “The following are special duties of the Attorney General of the Nation: ... (2)
To appoint and dismiss, in accordance with the law, the officials in his or her charge; (3) To
undertake investigations and prosecutions directly, irrespective of the state they are in, as
well as to freely assign and move officials in investigations and prosecutions. Likewise,
under the principles of managerial and hierarchical unity, to determine the approach and
A/HRC/WGAD/2019/38
6
GE.19-15969
position of the Office, without prejudice to the independence of the prosecutors, on the
terms and conditions established by law.”
36.
It is noted that the Attorney General, on 28 May 2018, asked to be recused by the
Supreme Court in a case intrinsically linked to the case of Mr. Vernot. The Plenary
Chamber of the highest court in the land agreed to his request on 21 June 2018. The source
alleges that the recusal of the Attorney General affects the impartiality of all action taken by
prosecutors working on Mr. Vernot’s case, which led to his detention, given the principles
of managerial and hierarchical unity established in article 251 (3) of the Constitution.
According to the source, the threats from a hierarchical superior and the phone calls
originated in the Attorney General’s Office, and therefore it is obvious that the entire
organizational structure of the Office serves the interests of the recused person. For the
source, this leads to the conclusion that prosecutors are disqualified under article 56 of the
Code of Criminal Procedure, as they are subordinates of the Attorney General, who, though
not intervening personally, does so through the intermediary of the officials beneath him
who owe him a duty of obedience.
37.
The source also claims that, that in order to arrest Mr. Vernot, the latter’s cell phone
was tapped so as to determine his location, in contravention of article 235 (3) of the Code
of Criminal Procedure, which prohibits the issuance of judicial orders to intercept
communications of lawyers in this way.
38.
The source argues that there has been a violation of the fundamental principle of the
presumption of innocence, since there is no reasonable inference that Mr. Vernot was the
perpetrator of the offence with which he is charged, which is a prerequisite for granting a
pretrial detention order. All that remains is the version of the detained witness, who was
heard and presented as a person without any interest in the case, which is false, since he is
deprived of liberty and is negotiating benefits from the Attorney General’s Office in
exchange for his testimony. Moreover, this witness stated that Mr. Vernot’s client owed
him a fee for his professional services, which proves there was a conflict of interest in his
statement. These circumstances are more than sufficient to show that it cannot reasonably
be inferred from the statement of the detained witness that Mr. Vernot committed the crime
with which he is charged. Moreover, the source states that the rest of the so-called proof is
absolutely irrelevant: the statement of a witness who did not hear the subject of the
conversation; a call from Mr. Vernot in which nothing was said; and a trip from Spain to
Colombia, which is not proof of any criminal conduct. The source stresses that there is not
a single piece of evidence against Mr. Vernot – no audio, written or video evidence that
could incriminate him.
39.
It is also alleged that the judge in Municipal Criminal Court No. 49, with
responsibility for ensuring due process, claimed that the actions of the lawyer Alexandre
Vernot could pose a risk of obstruction of justice in the future. However, the judge’s
conclusion is based on arbitrary reasoning. This is because it appears to be based on a
circumstantial and arbitrary premise, whereby she accepts the prosecution’s allegations
with respect to the imputed acts (bribery) and, on the basis of that first arbitrary conclusion,
concludes that there is therefore a proven risk that Mr. Vernot might, at some time in the
future, obstruct justice.
40.
In addition to this, as stated at the hearing, in the analysis of the danger posed by Mr.
Vernot in this case, the material evidence provided by the defence were not taken into
account.
Category II
41.
It is clear to the source that Mr. Vernot’s deprivation of liberty also falls into
category II, since he is a human rights defender, and that the real reasons for his detention
are twofold.
42.
First, the source claims that his detention is the result of the publication of the
newspaper article reporting that the current Attorney General is the real owner, through a
Panamanian company, of an apartment worth more than €3 million, which may have been
purchased with money not declared to the tax authorities.
A/HRC/WGAD/2019/38
GE.19-15969
7
43.
And second, the source argues that the detention results from Mr. Vernot’s defence
of human rights in Colombia in general and of one client in particular, a businessman and
former client of the current Attorney General, to whom the client allegedly failed to pay a
large professional fee for work done before he became Attorney General. Mr. Vernot’s
client is now facing criminal prosecution, apparently for other reasons, by the Attorney
General’s Office.
Government reply
44.
On 16 January 2019, the Working Group transmitted to the Government the
communication sent by the source and set a deadline for reply of 60 days, in accordance
with its working methods. The Working Group regrets the fact that the Government neither
requested an extension nor responded to the communication before the deadline, i.e. by 18
March 2019. The Government’s reply was received on 22 March 2019 and cannot therefore
be considered to have been submitted in a timely fashion. In accordance with paragraph 16
of its methods of work, the Working Group will render its opinion based on all the
information it has obtained.
Discussion
45.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion on the basis of all the information submitted, in
accordance with its methods of work.
46.
The Working Group has in its jurisprudence established how it deals with
evidentiary issues. If the source has established a prima facie case for a 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 In the present
case, in the absence of a reply within the time limit set, the allegations made by the source
are considered reliable in principle, having been corroborated by the information to which
the Working Group had access, including the reply from the Government received on 22
March 2019.
47.
From the information at its disposal, the Working Group is convinced that Mr.
Vernot was arrested on 27 September 2018 by the Colombian authorities. The officers
produced a warrant at the time of the arrest. At the arraignment hearing on the same day,
charges were preferred for bribery in the context of criminal proceedings and an application
was submitted for a custodial preventive measure, which was granted by the competent
court.
48.
The Working Group wishes to recall that it is not an appellate body and does not
assess evidence presented in the course of domestic proceedings, including remand
proceedings. Rather, in accordance with its methods of work and its settled practice, the
Working Group examines violations of internationally recognized guarantees of due
process that are of sufficient gravity for the detention of a person to be considered arbitrary
under category III.
49.
The source argues that the reason for Mr. Vernot’s detention is his exercise of
freedom of expression and his work in defence of human rights. However, the Working
Group received no compelling information to show that his arrest, three days after the
publication of an investigative newspaper article written by a close colleague of his, had
any connection with his arrest. Moreover, the same source informed the Working Group
that the investigation into Mr. Vernot may have been opened months in advance, which
weakens the proposition that a case could have been made against him in three days.
Category III
50.
Both the Universal Declaration of Human Rights and the Covenant recognize the
right of everyone accused of an offence to a fair and public hearing, with every guarantee,
2 A/HRC/19/57, para. 68.
A/HRC/WGAD/2019/38
8
GE.19-15969
by a competent, independent and impartial tribunal.3 The Working Group considers, as does
the Human Rights Committee, that this right is fundamental to the protection of human
rights, which is aimed at ensuring the proper administration of justice and guaranteeing a
number of specific rights.4 The Human Rights Committee has recalled that the requirement
of competence, independence and impartiality of judicial bodies is an absolute right that is
not subject to any exception. 5 Impartiality should be understood, first, as a way of
preventing judges from allowing their decisions to be influenced by personal bias or
prejudice, or harbouring preconceptions about the particular case before them, or acting in
ways that promote the interests of one of the parties to the detriment of another. Second, the
judicial body must also appear to a reasonable observer to be impartial.6
51.
The Special Rapporteur on the independence of judges and lawyers has noted that
the Guidelines on the Role of Prosecutors are, “at the global level, the main instrument
specifically aimed at regulating the profession of prosecutors”.7 With this in mind, the
Working Group would like to recall that the Guidelines, in the preamble, reaffirm the
principles of equality before the law, the presumption of innocence and the right to a fair
and public hearing by an independent and impartial tribunal.8 These rights are recognized in
the Universal Declaration of Human Rights,9 in the Covenant10 and also, among others, in
the American Convention on Human Rights.11
52.
The Working Group is of the view that the criteria of competence, impartiality and
independence, and in general the guarantees of a fair trial required of judges, are also
applicable to prosecutors, as the latter play an essential role in the administration of justice
and the fight against crime. In this connection, as pointed out by the Special Rapporteur on
the independence of judges and lawyers:
Prosecutors are the essential agents of the administration of justice, and as such
should respect and protect human dignity and uphold human rights, thus
contributing to ensuring due process and the smooth functioning of the criminal
justice system. Prosecutors also play a key role in protecting society from a culture
of impunity and function as gatekeepers to the judiciary.12
53.
In following these Guidelines, the Working Group emphasizes that prosecutors have
a duty to perform their duties fairly, consistently and expeditiously, and to respect and
protect human dignity and uphold human rights.13 Their duties include carrying out their
functions impartially, acting with objectivity and paying attention to all relevant
circumstances, irrespective of whether they are to the disadvantage of the suspect.14
54.
In this regard, the Working Group stresses the importance of the active role or
function of prosecutors in criminal proceedings, including the institution of prosecutions,
the investigation of crime, supervision of the legality of these investigations, supervision of
the execution of court decisions and the exercise of other functions as representatives of the
public interest.15
55.
The Special Rapporteur also noted that, in assessing the independence and
impartiality of prosecutors, it is important to examine both the structural independence of
prosecutors’ offices and their operational independence and impartiality, or functional
3 Article 10 of the Declaration and article 14 of the Covenant.
4 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial,
para. 2.
5 Ibid., para. 19.
6 Ibid., para. 21.
7 A/HRC/20/19, para. 20.
8 A/CONF.144/28/Rev.1, second and fifth preambular paragraphs.
9 Articles 10 and 11.
10 Article 14.
11 Article 8.
12 A/HRC/20/19, para. 93.
13 A/CONF.144/28/Rev.1, guideline 12.
14 Ibid., guideline 13 (a) and (b).
15 Ibid., guideline 11.
A/HRC/WGAD/2019/38
GE.19-15969
9
independence, and that the “lack of autonomy can erode the credibility of the authority
responsible for investigating crimes objectively and undermine confidence in its ability to
do so”.16 In this context, the United Nations Guidelines emphasize that States have a duty to
ensure that prosecutors can carry out their functions without improper interference.17 In the
present case, the Working Group will examine whether the Attorney General’s Office acted
independently and impartially in the investigation and criminal indictment of Mr. Vernot.
56.
In this connection, the Working Group received information, which was not refuted
by the State party, that Mr. Vernot was a defence lawyer for a client who was president of,
and a shareholder in, an automobile company, and that he himself was represented by a
team of lawyers led by the current Attorney General, who, in August 2016, on being
appointed to that post, ceased to represent that automobile company. That team of lawyers
agreed with Mr. Vernot’s client to accept as payment a success bonus in a case involving
that company, which ended in a negotiated settlement between the parties. It appears that
the fee had not been paid by December of that year, even though the team of lawyers had
demanded payment.
57.
The Working Group received compelling information, which was not contested by
the State party, about a number of criminal charges and threats against clients and other
lawyer colleagues of Mr. Vernot who worked on the same case. Similarly, the Government
did not respond to the claim by the source that, in January 2018, the Attorney General’s
Office indicted a group of individuals for offences relating to interference in the assignment
of files in the antitrust action against the aforementioned automobile company.
58.
In the light of the information received, the Working Group is convinced that, since
21 June 2018, the Attorney General was disqualified from pursuing Mr. Vernot’s case, as
decided by the Plenary Chamber of the Supreme Court in its response to a recusal request
from the Attorney General himself in accordance with Colombian legislation. The Court
ruled that the case should be dealt with by the Deputy Attorney General of the Nation.
59.
The Working Group is also convinced that the Attorney General has the power to
appoint and dismiss officials in his charge; to undertake investigations and prosecutions
directly, and to freely assign and move officials in investigations and prosecutions, as well
as to determine the approach and position of the Attorney General’s Office. This implies
that public prosecutors are subordinate to the Attorney General, who, though not
intervening personally, does so through the intermediary of the officials beneath him who
owe him a duty of obedience.
60.
Taking into account the nature of the offence with which Mr. Vernot has been
charged, the managerial and hierarchical rules applicable to the Attorney General in respect
of his subordinates, the criminal charges and threats against people close to the case and the
recusal of the Attorney General by decision of the Supreme Court, the Working Group
considers that there is sufficient evidence to believe that, from the perspective of a
reasonable observer, the entire organizational structure of the Attorney General’s Office
may have acted to advance the interests of the recused person.
61.
Moreover, the Working Group noted that the Attorney General was not disqualified
between his inauguration on 1 August 2016 and 21 June 2018, and that in this period the
institution he headed conducted investigations and proceedings and determined the
approach and position of the Attorney General’s Office in the course of the investigation. In
January 2018, the Attorney General’s Office charged a group of individuals with offences
related to interference in the assignment of files in the antitrust action against the
automobile company.
62.
For the above reasons, the Working Group is of the view that the action of the
Attorney General’s Office was not objective or impartial in the investigation and indictment
of Mr. Vernot, which constitutes a partial but serious failure to respect the international
norms for a fair trial set out in article 10 of the Universal Declaration of Human Rights and
16 A/HRC/17/30/Add.3, para. 16. See also para. 87.
17 A/HRC/20/19, para. 26.
A/HRC/WGAD/2019/38
10
GE.19-15969
article 14 of the Covenant, meaning that the detention was arbitrary and falls into category
III.
Disposition
63.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Alexandre Vernot, being in contravention of articles 9
and 10 of the Universal Declaration of Human Rights and of articles 9 and 14 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
category III.
64.
The Working Group requests the Government to take the necessary steps to remedy
the situation of Mr. Vernot 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 Covenant.
65.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Vernot immediately and accord him
an enforceable right to compensation and other reparations, in accordance with
international law.
66.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Vernot and to take appropriate measures against those responsible for the violation of his
rights.
67.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
68.
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 action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Vernot has been released and, if so, on what date;
(b)
Whether compensation has been paid or other reparation made to him;
(c)
Whether an investigation has been conducted into the violation of Mr.
Vernot’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 Colombia with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
69.
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.
70.
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 action of its own 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.
71.
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
A/HRC/WGAD/2019/38
GE.19-15969
11
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.18
[Adopted on 13 August 2019]
18 Human Rights Council resolution 33/30, paras. 3 and 7.