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.20-01611 (E) 210220 210220
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-sixth session, 18–22 November 2019
Opinion No. 81/2019 concerning Carlos Miguel Aristimuño de Gamas
(Bolivarian Republic of Venezuela)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. 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 42/22.
2.
In accordance with its methods of work (A/HRC/36/38), on 21 August 2019, the
Working Group transmitted to the Government of the Bolivarian Republic of Venezuela a
communication concerning Carlos Miguel Aristimuño de Gamas. The Government
requested an extension of the deadline for submitting a response, which was granted, and
responded to the communication on 4 November 2019. 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);
(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/2019/81
General Assembly
Distr.: General
4 February 2020
English
Original: Spanish
A/HRC/WGAD/2019/81
2
GE.20-01611
Submissions
Communication from the source
4.
Mr. Aristimuño is a Venezuelan national domiciled in Chacao, Miranda State. By
profession, he is a safety instructor, helicopter pilot and former police officer. He was 60
years old when he was deprived of his liberty.
5.
According to the information received, Mr. Aristimuño was arrested at his home, at
10.30 p.m. on Sunday, 15 April 2018, when a group of between 25 and 28 heavily armed
officers dressed in black hooded uniforms called at his building. The officers were allowed
to enter the building even though they did not produce a search warrant. They claimed to be
looking for a terrorist and asked the neighbours where Mr. Aristimuño’s apartment was.
When they arrived at the door of his apartment, Mr. Aristimuño identified himself by
giving his name.
6.
The source indicates that the officers then bound Mr. Aristimuño’s wrists together
with black plastic tape, immobilizing him as if he were handcuffed, and took him to an
adjacent room. Meanwhile, a member of Mr. Aristimuño’s family who was present at the
scene was forced to remain in a chair in the first room, handcuffed with a cable plastic tape
and unable to move. When she tried to move, the officers threatened to arrest her. The
officers were later identified as members of the Directorate General of Military Counter-
Intelligence.
7.
According to the source, the officers ransacked the apartment, removing all
belongings from the chests of drawers and off the shelves and stealing many of the items,
notably the content of a storage trunk. After the search, which was conducted without a
warrant, the officers claimed to have found weapons in the trunk. Mr. Aristimuño was
brought back into the first room and subjected to hostile questioning about persons he
supposedly knew.
8.
According to the information received, before leaving, the purported officers of the
Directorate General of Military Counter-Intelligence placed a black bag over Mr.
Aristimuño’s head and told the family member present that she had to accompany them,
without explaining why and without presenting an arrest warrant. The officers also
demanded that the video tapes from the security cameras be handed over to them before
they left. Mr. Aristimuño and his relative were taken to the headquarters of the Directorate
General of Military Counter-Intelligence in the Boleíta district, in the municipality of Sucre,
where they were separated. Mr. Aristimuño’s relative was taken to the investigations unit,
where she was held for two and a half days without food or water before eventually being
freed on Tuesday, 17 April 2018.
9.
The source stresses that, under Venezuelan law, arrest without a warrant issued by a
judge is legal only in cases of flagrante delicto. According to article 234 of the Code of
Criminal Procedure, a flagrant offence is an offence that is being or has just been
committed. An offence leading to the pursuit of the suspect by the police or the victim or to
an immediate public outcry, or an offence committed just before the suspect is caught at the
scene of the crime or in the vicinity thereof while in possession of weapons, tools or other
items providing grounds to believe that he or she is the perpetrator, is also considered a
flagrant offence.
10.
The source reports that Mr. Aristimuño was held incommunicado and tortured on the
premises of the Directorate General of Military Counter-Intelligence, not only at its
headquarters in Boleíta but also in other facilities. A plastic bag was placed over his head
and water was poured over his face, causing him to suffocate. For the duration of his
detention on the premises of the Directorate General of Military Counter-Intelligence, he
was kept in isolation in a small cell without food or water, where round-the-clock electric
lighting made it impossible for him to distinguish between night and day. He was subjected
to severe ill-treatment; for example, he was frequently beaten with a steel baton and forced
to drink dirty water; his food was thrown on the floor, and he was forced to eat it quickly,
off the floor, otherwise they would clean it up and take it away; and officers threatened to
mutilate parts of his body. He was severely beaten and saw persons he did not know being
executed. As a result of this treatment, he now suffers from severe abdominal pain and his
whole body is weak. He is unable to stand, much less walk, has high fevers, suffers from
A/HRC/WGAD/2019/81
GE.20-01611
3
severe malnutrition, weighs 30 kilograms, has broken teeth and suffers from various other
serious health conditions.
11.
On 18 April 2018, the Minister of the Interior stated on national public television
that “members of a terrorist cell planning operations intended to destabilize the public order
and undermine peace in the Republic” had been detained. These statements were made in
tandem with various posts on the Minister’s account on the social media platform Twitter,
which included a photo of Mr. Aristimuño, next to which it was stated that he had been
“hired by the terrorist cell as an instructor of various courses for this militant group of
insurgents”.
12.
On 20 April 2018, Mr. Aristimuño was brought before Caracas Military Court of
Due Process No. 3 for a detention hearing. According to the source, in accordance with the
Constitution, detainees must be brought before the judicial authority that issued the warrant
for their arrest within 48 hours of apprehension, but this did not occur in the present case,
since Mr. Aristimuño was not brought before a judicial authority until 96 hours after his
arrest.
13.
The source indicates that, when brought before the military judge, Mr. Aristimuño
showed signs of the cruel, inhuman and degrading treatment to which he had been
subjected while being held on the Directorate General of Military Counter-Intelligence’s
premises. At the hearing, the military judge ordered Mr. Aristimuño’s transfer to Santa Ana
National Centre for Military Detainees in Táchira State, which is 812 kilometres from
Caracas. This made it difficult and expensive for relatives to bring him food, clothing and
other items, and scuppered any possibility of his relatives and defence counsel visiting him
on a regular basis.
14.
According to the information received, in the written submission presented to the
military judge, the Military Prosecutor stated that Mr. Aristimuño had been detained on
account of his alleged links to destabilizing, destructive acts against units of the National
Bolivarian Armed Forces in Caracas. The Prosecutor claimed that Mr. Aristimuño had been
planning to carry out destabilizing attacks, involving, for example, planting large quantities
of explosives in the vicinity of the National Electoral Council, in the national headquarters
of the Bolivarian National Guard, in La Carlota “Generalísimo Francisco Miranda” Air
Force Base and in various military facilities in Fuerte Tiuna, with the aim of incapacitating
their personnel so that the militants could steal the military supplies they needed to carry
out alleged plans to prevent the elections due to take place in May 2018. The source
stresses that the Military Prosecutor provided no evidence to support the claims made in the
written submission incriminating Mr. Aristimuño.
15.
According to the source, the Military Prosecutor accused Mr. Aristimuño of
committing the offences of treason, as provided for in article 464 (25) of the Code of
Military Justice and punishable under article 465 read in conjunction with article 467;
instigating a military rebellion, as provided for in articles 481 and 487 of the Code; and
affronting the Armed Forces, also provided for in the Code of Military Justice. The source
highlights that Mr. Aristimuño is a civilian being tried in a military court.
16.
The pretrial hearing in Mr. Aristimuño’s case was held on 19 October 2018. At the
hearing, the Prosecutor reiterated the charges of treason, affronting the Armed Forces, theft
of military supplies and instigating a rebellion laid against the accused. The source
indicates that Mr. Aristimuño’s defence counsel succeeded in having the first three charges
dismissed. Nonetheless, the military court ordered that Mr. Aristimuño be tried for the
offence of instigating a rebellion. The source reports, however, that the trial phase is yet to
begin, despite the fact that more than 10 months have passed since the order was given to
move to trial upon conclusion of the preliminary phase.
17.
The source alleges that there is no legal basis justifying Mr. Aristimuño’s detention,
since article 44 of the Constitution provides that the right to personal liberty is inviolable
and that detention is permissible only when ordered by a court warrant or in cases of
flagrante delicto.
18.
The source points to a violation of Mr. Aristimuño’s fundamental rights, including
his right to a defence and to due process, his right to be presumed innocent, his right to
remain at liberty during proceedings and his right to be heard before the natural judge.
A/HRC/WGAD/2019/81
4
GE.20-01611
Article 49 of the Constitution enshrines the fundamental safeguards of due process, which,
according to the source, have been violated in Mr. Aristimuño’s case.
19.
The source stresses that, in accordance with the legislation governing Venezuelan
criminal procedure, police authorities must respect certain obligations when arresting
suspects as part of a criminal investigation. These obligations are enshrined in article 119 of
the Code of Criminal Procedure and include the following: to use force only when strictly
necessary and, in such cases, only to the extent required to make the arrest; not to use arms,
except in the event of resistance that endangers a person’s life or physical integrity and, in
such cases, subject to the aforementioned restrictions on the use of force; not to commit,
instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or
punishment; not to reveal detainees’ identity to the media when doing so could affect
ongoing investigations; to identify oneself as a law enforcement officer at the time of arrest;
and to inform detainees of their rights.
20.
The source also claims that, pursuant to article 229 of the Code of Criminal
Procedure, Mr. Aristimuño had the right to remain at liberty during proceedings. According
to article 220, deprivation of liberty is a precautionary measure admissible only when other
precautionary measures provide insufficient guarantee for the purposes of the proceedings.
21.
The source reports that Mr. Aristimuño’s defence counsel has requested a hearing
before the Attorney General for the purpose of establishing whether Mr. Aristimuño’s
detention is lawful and formally recording the ill-treatment to which he has been subjected
and the damage done to his health and physical integrity. Such a hearing would also be an
opportunity to report the cruel and inhuman treatment, torture, verbal abuse and insults to
which Mr. Aristimuño has been subjected from the moment the purported officers of the
Directorate General of Military Counter-Intelligence broke into his home on 15 April 2018
until the present day. Military Court No. 3 has not agreed to the hearing, in breach of due
process.
22.
Mr. Aristimuño’s defence lawyers allegedly informed the office of the special
prosecutor responsible for upholding fundamental rights that officers of the Directorate
General of Military Counter-Intelligence, the Special Action Forces and the Bolivarian
National Police Force, acting together, made frequent visits to Santa Ana National Centre
for Military Detainees in the early hours of the morning and engaged in dehumanizing
attacks on prisoners, including Mr. Aristimuño, whom they subjected to physical and
psychological torture; they even stole personal belongings from his cell and threatened to
kill him. The defence lawyers reported that the officers involved had violated Mr.
Aristimuño’s fundamental rights. However, the Public Prosecution Service failed to act on
these reports.
23.
Mr. Aristimuño’s defence lawyers also requested the support of the Attorney
General’s Office in ensuring that its criminal forensics department and its forensic medicine
experts provided due assistance in respect of the fundamental rights violations suffered by
Mr. Aristimuño. Specifically, they requested that the Office’s experts be sent with the
utmost urgency to Santa Ana National Centre for Military Detainees to check on Mr.
Aristimuño’s state of health and thus protect his right to health and physical integrity and
his right to life. However, to date, no check-up has been conducted.
24.
The source stresses that Mr. Aristimuño’s health has rapidly and seriously
deteriorated as a consequence of the torture and cruel, inhuman and degrading treatment to
which he has been subjected. Mr. Aristimuño currently weighs 30 kilograms. His defence
counsel has repeatedly requested that he receive adequate and timely medical assistance as
a matter of utmost urgency; however, such assistance has been denied to him time and time
again.
25.
The source reports that Mr. Aristimuño, who is a civilian, was transferred to and is
currently being detained in Ramo Verde National Centre for Military Detainees in Los
Teques, Miranda State.
Response from the Government
26.
On 21 August 2019, the Working Group transmitted the source’s allegations to the
Government, requesting a response by 22 October 2019. The Government requested an
A/HRC/WGAD/2019/81
GE.20-01611
5
extension of this deadline and was given until 5 November 2019 to reply. The Government
submitted its response on 4 November 2019.
27.
The Government states that Mr. Aristimuño has been deprived of liberty since 18
April 2018 in the context of criminal proceedings brought against him as the alleged
perpetrator of offences under Venezuelan law related to politically destabilizing plans and
activities specifically intended to prevent the presidential elections of 20 May 2018 from
taking place.
28.
On 13 April 2018, the Directorate General of Military Counter-Intelligence sent an
official letter to the Military Prosecutor’s Office, informing it of the results of an
investigation that allegedly linked Mr. Aristimuño and other individuals to plans to carry
out attacks, including a plan to plant explosives in the vicinity of the National Electoral
Council, in the national headquarters of the Bolivarian National Guard, in La Carlota
“Generalísimo Francisco Miranda” Air Force Base and in various military facilities, with
the aim of incapacitating military personnel so that they could steal military supplies
belonging to the Armed Forces for use in a planned attempt to prevent the May 2018
elections.
29.
This information was incorporated into an investigation being conducted by the
Military Prosecutor’s Office, leading it to request, on 13 April 2018, that Military Court of
Due Process No. 3 issue a warrant for Mr. Aristimuño’s arrest. This request was received
on 16 April 2018. By way of an official letter dated 13 April 2018, the Military
Prosecutor’s Office also requested Military Court of Due Process No. 3 to grant it a warrant
to search and seize property from Mr. Aristimuño’s home.
30.
In response to the requests submitted by the Military Prosecutor’s Office, Military
Court of Due Process No. 3 granted an arrest warrant on 16 April 2018, in accordance with
article 236 of the Code of Criminal Procedure. The Court also granted a search warrant on
16 April 2018, thereby authorizing officers of the Directorate of Military Counter-
Intelligence to search Mr. Aristimuño’s home.
31.
On 18 April 2018, officers of the Directorate General of Military Counter-
Intelligence searched Mr. Aristimuño’s home, in implementation of the search warrant.
This process was carried out in the presence of witnesses who are identified in records
attached to the case file, in accordance with article 196 of the Code of Criminal Procedure.
32.
During the search, the officers arrested Mr. Aristimuño. At the time of arrest, the
officers informed Mr. Aristimuño of the reasons for his arrest and of his rights as a suspect.
The proceedings in this case were carried out in accordance with article 113 of the Code of
Criminal Procedure and article 3 (4) and (5) of the general regulations of the Directorate
General of Military Counter-Intelligence.
33.
Following his arrest, Mr. Aristimuño was taken to the headquarters of the
Directorate General of Military Counter-Intelligence, where he was held in detention while
waiting to be brought before the court hearing the case.
34.
On 20 April 2018, within 48 hours of his arrest, Mr. Aristimuño was brought before
Military Court of Due Process No. 3 for an oral hearing on his detention, in accordance
with article 236 of the Code of Criminal Procedure.
35.
At the hearing, the Military Prosecutor formally charged Mr. Aristimuño with the
offences of treason, instigating a military rebellion, affronting the Armed Forces and theft
of items belonging to the Armed Forces (Code of Military Justice, arts. 464 (25), 465, 467,
481, 487, 505 and 570).
36.
During the hearing, Mr. Aristimuño’s private defence lawyers were allowed to make
their arguments before the court. They rejected the charges brought by the Military
Prosecutor, requesting that they be dropped and that Mr. Aristimuño be released. At no
point did the defence counsel call into question the jurisdiction of Military Court of Due
Process No. 3 over the defendant or report any human rights violations or acts of torture.
37.
Mr. Aristimuño was also permitted to address the court and set out the points he
considered central to his defence. However, he did not more than offer explanations of the
facts presented and profess his innocence. At no point did he complain to the judge in the
case that he had been subjected to acts of torture or that the search of his home and his
arrest had been conducted without a warrant.
A/HRC/WGAD/2019/81
6
GE.20-01611
38.
According to the Government, the fact that his defence counsel did not report these
alleged violations of Mr. Aristimuño’s right to integrity of the person and to due process
contradicts the statements made by third parties in the same case. This proves that the
allegations made are not grounded in reality.
39.
Military Court of Due Process No. 3 decided to authorize Mr. Aristimuño’s
detention and to order that he be placed in pretrial detention in Santa Ana National Centre
for Military Detainees.
40.
A pretrial hearing was held before Military Court of Due Process No. 3 on 19
October 2018. The judge in the case dismissed the charges of affronting the Armed Forces,
treason and theft of items belonging to the Armed Forces but ordered that Mr. Aristimuño
stand trial for the offence of instigating a military rebellion, as provided for in articles 481
and 487 of the Code of Military Justice.
41.
On 25 February 2019, Military Court of Due Process No. 3 referred Mr.
Aristimuño’s case to Military Trial Court No. 1. The proceedings are currently on hold
pending a hearing for the opening of the public trial phase.
42.
It was not possible to hold such a hearing in 2019, owing to various circumstances
preventing the Trial Court from being able to sit with the three professional judges required.
43.
Mr. Aristimuño is currently deprived of his liberty in Ramo Verde National Centre
for Military Detainees, Miranda State. His detention conditions meet international standards.
Mr. Aristimuño’s state of health is not as described by the source.
44.
Mr. Aristimuño has been deprived of his liberty by way of a court decision within
the context of criminal proceedings. The State has respected all of Mr. Aristimuño’s rights
under the Universal Declaration of Human Rights and other applicable instruments.
45.
In the light of the above, the detention of Mr. Aristimuño cannot be considered
arbitrary under categories I and III. The arrest was made pursuant to an arrest warrant
issued by a judicial authority, in accordance with article 44 of the Constitution and article
236 of the Code of Criminal Procedure. In other words, there is a legal basis justifying the
detention. Furthermore, the criminal proceedings against Mr. Aristimuño have at all times
been conducted in strict compliance with the safeguards of due process and the right to a
defence, as recognized in articles 10 and 11 of the Universal Declaration of Human Rights
and articles 9 and 14 of the Covenant.
46.
The Government further notes that there has been no violation of Mr. Aristimuño’s
right to remain at liberty during proceedings, as this right is not absolute and is subject to
certain limitations, as provided for by law.
47.
The Government concludes that the detention of Mr. Aristimuño is fully compliant
with the provisions of the Constitution and domestic law and with the Universal
Declaration of Human Rights and the Covenant.
Further comments from the source
48.
The Working Group transmitted the Government’s response to the source on 4
November 2019. The source submitted final comments and observations on the
Government’s response on 11 November 2019.
49.
In these final observations, the source stresses that the Government recognizes that
Mr. Aristimuño, who is and has always been a civilian, has been investigated, prosecuted,
detained and tried by various military courts from the outset of proceedings. The
Government thereby accepts and confirms that his detention is arbitrary.
50.
The source claims that since 2014, at least 848 civilians, including Mr. Aristimuño,
have been investigated, detained, prosecuted and even sentenced by military courts. This
practice, which is systematic and the result of a State policy, as recognized by the
Government in its communication, is a clear violation of these civilians’ rights to be heard
by the natural judge and to due process, as enshrined in article 49 (4) of the Constitution
and in multiple international human rights treaties, by virtue of the fact that they are not
members of the military.
51.
The source also stresses that, at the moment of Mr. Aristimuño’s arrest, no arrest or
search warrant that would provide a legal basis for his illegitimate detention had been
A/HRC/WGAD/2019/81
GE.20-01611
7
issued, since at that time no judicial order whatsoever had been issued against him. These
orders were issued by the judicial authority after the arrest.
52.
The source indicates that Mr. Aristimuño was not brought before the judicial
authorities within 48 hours of his arrest, as required by the Constitution and the law. Instead,
he was held incommunicado for 96 hours before being arbitrarily brought before the
military courts. The source notes that the Government recognizes this to be the case when it
highlights that the hearing on Mr. Aristimuño’s detention, when he was finally allowed to
communicate with his defence counsel, was not held until 20 April 2018.
53.
The source notes that in several paragraphs of the communication sent by the
Government to the Working Group, the Government claims that Mr. Aristimuño’s defence
counsel failed to report the ill-treatment, torture and serious injuries suffered by Mr.
Aristimuño throughout the investigation. The source claims that these statements are false.
54.
The acts to which Mr. Aristimuño was subjected were reported to the military court
and to the office of the special prosecutor responsible for upholding fundamental rights,
now known as the office of the special prosecutor responsible for upholding human rights,
which is attached to the Public Prosecution Service. In both cases, it was reported that
several persons arbitrarily detained in Ramo Verde military prison, including Mr.
Aristimuño, had serious health problems, most of which were the result of ill-treatment
suffered at the time of arrest and in the days immediately after. However, to date, no
investigation into these events has been opened.
Discussion
55.
The Working Group thanks the parties for their contributions to the resolution of the
present case.
56.
The Working Group is mandated to investigate all claims 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 other relevant international legal instruments, in accordance with
its methods of work.
57.
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, then the burden of proof should
be understood to rest upon the Government if it wishes to refute the allegations. Mere
assertions, proffered in isolation and without substantiation, that lawful procedures have
been followed are not sufficient to rebut the source’s allegations.1
58.
Mr. Aristimuño is a safety instructor, helicopter pilot and former police officer. He
was 60 years old when he was deprived of his liberty.
Category I
59.
The Working Group has indicated that anyone who is arrested must be informed, at
the time of their arrest, not only of the reasons for the arrest2 but also of the judicial avenues
available for challenging the lawfulness of the arrest. 3 The reasons for the arrest must
include not only the general legal basis but also factual specifics to indicate the substance of
the complaint and the wrongful act committed. These reasons concern the official basis for
the arrest, not the subjective motivations of the arresting officer.4
60.
In its jurisprudence, the Working Group has consistently held that a person is
considered to have been arrested in flagrante delicto when the accused is deprived of liberty
1 A/HRC/19/57, para. 68.
2 Covenant, art. 9 (2).
3 A/HRC/30/37, principle 7. Right to be informed.
4 General comment No. 35 (2014) on liberty and security of person, para. 25.
A/HRC/WGAD/2019/81
8
GE.20-01611
during or immediately after the commission of an offence or is arrested in hot pursuit
moments after the offence has been committed.5
61.
The Working Group received credible information to the effect that Mr. Aristimuño
was arrested at his home at 10.30 p.m. on Sunday, 15 April 2018, without having been
shown a warrant or having been caught in flagrante delicto, by a group of between 25 and
28 officers of the Directorate General of Military Counter-Intelligence, who were dressed in
black and heavily armed. The Working Group also received credible information to the
effect that Mr. Aristimuño was detained on the premises of the Directorate General of
Military Counter-Intelligence.
62.
The Working Group received alarming information to the effect that the authorities
placed a plastic bag over Mr. Aristimuño’s head and poured water over his face, causing
him to suffocate, and that for the duration of his detention on the premises of the
Directorate General of Military Counter-Intelligence he was kept in isolation in a small cell
and was subjected to cruel, inhuman and degrading treatment. In the light of these
allegations, the Working Group refers the present case to the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment.
63.
By virtue of the fact that Mr. Aristimuño was arrested without a warrant and was not
caught committing or having just committed an offence, the Working Group considers that
the Government was unable to invoke any legal basis to justify depriving him of his liberty
and that his detention is arbitrary under category I.
Category III
Presumption of innocence
64.
Article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the
Covenant recognize the right of all persons charged with a criminal offence to be presumed
innocent. This right imposes a number of obligations on all State institutions to treat
persons accused of a criminal offence as innocent until they have been found guilty beyond
any reasonable doubt. In the view of the Working Group, as well as that of the Human
Rights Committee, this right carries an obligation for all public authorities, including the
executive branch, to avoid prejudging the outcome of a trial, which means refraining from
making public statements affirming the guilt of the accused.6
65.
The Working Group has determined that statements publicly condemning the
accused person before a judgment has been made violate the presumption of innocence and
constitute undue interference that undermines the independence and impartiality of the
court.7
66.
The Inter-American Court of Human Rights has stated that:
The right to be presumed innocent requires that the State refrain from
informally convicting a person or making public declarations regarding his or her
guilt, thereby shaping public opinion, so long as the person’s guilt has not been
proven according to law. This right can be violated by the judges in charge of the
proceedings or indeed by other public authorities, who therefore have a duty to
exercise discretion and caution when making public statements regarding criminal
proceedings before the person has been tried and a judgment has been made.8
67.
The Working Group has reiterated that the public statements of high-ranking
officials violate the right to be presumed innocent if such statements declare persons guilty
of an offence for which they have not yet been tried, thereby leading the public to believe
5 See opinions Nos. 13/2019, para. 53; 9/2018, para. 38; 36/2017, para. 85; 53/2014, para. 42; 46/2012,
para. 30; 67/2011, para. 30; and 61/2011, paras. 48–49. See also E/CN.4/2003/8/Add.3, paras. 39 and
72 (a).
6 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial,
para. 30. See also Kozulina v. Belarus (CCPR/C/112/D/1773/2008), para. 9.8.
7 Opinions Nos. 90/2017, 76/2018, 89/2018 and 40/2019.
8 Pollo Rivera et al. v. Peru, Judgment of 21 October 2016, Merits, Reparations and Costs, Series C,
No. 319, para. 177.
A/HRC/WGAD/2019/81
GE.20-01611
9
them guilty and influencing or prejudging the assessment of the facts by the competent
judicial authority.9
68.
The Working Group received credible information to the effect that, on 18 April
2018, the Minister of the Interior stated on national public television that “members of a
terrorist cell planning operations intended to destabilize the public order and undermine
peace in the Republic” had been detained and published images of Mr. Aristimuño on
social media indicating that he had been “hired by the terrorist cell as an instructor of
various courses for this militant group of insurgents”.
Right to a hearing before a competent tribunal
69.
The Working Group recalls that the detention of civilians by the Venezuelan
military authorities is an issue that it has already dealt with in previous opinions.10 As stated
previously, the trial of civilians by judges who are under military command is an
irregularity.11 In the Working Group’s view, one of the main benefits of civilian judges is
their impartiality and independence, which military judges generally lack because they are
required to follow orders given by superior officers and because they are appointed by the
executive branch. Thus, the separation of powers is not guaranteed in the exercise of this
judicial function, which must be independent and impartial.
70.
The Working Group has noted in its jurisprudence that placing civilians under the
jurisdiction of military prosecutors and courts breaches obligations contained in both the
Universal Declaration of Human Rights and the Covenant. The military courts cannot be
considered to be “competent, independent and impartial” within the meaning of article 14
(1) of the Covenant.12 In addition, the Working Group believes that military courts should
only be competent to try military personnel for military offences and are precluded from
trying cases in which the accused or the victims are civilians. Additionally, the Working
Group has noted that the offences of rebellion, sedition and attacks against democratic
institutions, when committed by civilians, cannot be tried by military courts.13
71.
In the light of the information received from the parties, the Working Group is
convinced that Mr. Aristimuño, who is a civilian, is being prosecuted and tried by the
military courts. The Working Group is of the view that the military authorities are not
competent to order the detention of civilians. Therefore, the detention of Mr. Aristimuño,
which was ordered by a military court, violates the human right to a fair trial as established
in articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 of
the Covenant.
72.
In recent years, the Working Group has repeatedly expressed views on multiple
arbitrary arrests of political opponents of the Government or people who have exercised
their rights to freedom of opinion, expression, association, assembly or political
participation. Such persecution, in the Working Group’s view, is an attack or systematic
practice engaged in by the Government to deprive political opponents, particularly those
who are seen as opponents of the regime, of their physical freedom, in violation of
fundamental rules of international law, including the Universal Declaration of Human
Rights and the Covenant. The Working Group recalls that, in some circumstances,
imprisonment and other severe forms of deprivation of physical liberty that violate
internationally recognized norms may constitute crimes against humanity.14
73.
In the light of the recurrent pattern of arbitrary detention identified by this
international human rights mechanism in recent years, the Government is urged to consider
inviting the Working Group to make an official visit to the country. Such visits are an
opportunity for the Working Group to engage in direct constructive dialogue with the
9 See opinions Nos. 6/2019 and 12/2019.
10 See opinion No. 84/2017.
11 See A/HRC/27/48, paras. 66 and 70. See also opinions Nos. 30/2017 and 44/2016.
12 See A/HRC/27/48, paras. 69.
13 Ibid.
14 See opinions Nos. 37/2011, para. 15; 38/2011, para. 16; 39/2011, para. 17; 4/2012, para. 26; 47/2012,
paras. 19 and 22; 34/2013, paras. 31, 33 and 35; 35/2013, paras. 33, 35 and 37; 36/2013, paras. 32, 34
and 36; 38/2012, para. 33; 48/2013, para. 14; 22/2014, para. 25; 27/2014, para. 32; 34/2014, para. 34;
35/2014, para. 19; 44/2016, para. 37; 32/2017, para. 40; 33/2017, para. 102; and 36/2017, para. 110.
A/HRC/WGAD/2019/81
10
GE.20-01611
Government 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.
74.
In view of the information received regarding allegations of acts of torture and Mr.
Aristimuño’s state of health, in accordance with paragraph 33 (a) of its methods of work,
the Working Group refers the present case to the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health
and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment.
Disposition
75.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Carlos Miguel Aristimuño de Gamas, 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 categories I and III.
76.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Mr. Aristimuño 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.
77.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Aristimuño immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
78.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Aristimuño and to take appropriate measures against those responsible for the violation of
his rights.
79.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health and the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment, for appropriate
action.
80.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
81.
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. Aristimuño has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr.
Aristimuño;
(c)
Whether an investigation has been conducted into the violation of Mr.
Aristimuño’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 Bolivarian Republic of Venezuela with its
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
82.
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.
A/HRC/WGAD/2019/81
GE.20-01611
11
83.
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.
84.
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.15
[Adopted on 22 November 2019]
15 See Human Rights Council resolution 42/22, para. 3.