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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-seventh session, 27 April–1 May 2020

Opinion No. 18/2020 concerning Rubén Darío González Rojas

(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 28 October 2020, the

Working Group transmitted to the Government of the Bolivarian Republic of Venezuela a

communication concerning Rubén Darío González Rojas. The Government requested an

extension of the deadline for its response. The request was granted, and the response was

submitted on 27 January 2020. 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,

United Nations

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General Assembly

Distr.: General

12 June 2020

English

Original: Spanish

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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.

Rubén Darío González Rojas is a Venezuelan citizen born on 17 March 1959 and

residing in Ciudad Piar, in the Bolivarian municipality of Angostura, State of Bolivar. Mr.

González Rojas is the general secretary of the Ferrominera del Orinoco workers’ union and

has worked for the Corporación Venezolana de Guayana Ferrominera del Orinoco for 34

years.

5.

According to the source, Mr. González Rojas has been subject to persistent

persecution for more than seven years because of his ongoing work in defence of labour

rights. The source reports that, in August 2009, the workers organized a peaceful strike to

protest against the company’s failure to comply with the collective agreement. On 24

September of that year, one month after, Mr. González Rojas was arrested for offences

allegedly committed during the strike. He was charged with inciting criminal activity,

obstructing freedom to work and violating security zones, among other offences. He was

imprisoned for 15 months, tried over a period of five years, which, according to the source,

was marked by countless procedural irregularities and incidents that led the Criminal

Chamber of the Supreme Court to overturn the conviction, which had sentenced him to 7

years’ imprisonment. The Criminal Chamber ordered the case to be referred back to the State

and a new public hearing to be organized.

6.

The trial recommenced before another court. the case being heard in Caracas by order

of the Criminal Chamber, and, eventually, on 23 April 2014, First Instance Court No. 24 of

the Criminal Judicial Circuit of the Metropolitan Area of Caracas ordered Mr. González

Rojas’ unconditional release, having found him innocent of all charges brought against him

owing to his leadership of the workers’ strike at the mining company.

7.

According to the submissions, more recently, Mr. González Rojas was arrested in the

early morning of 29 November 2018, in Anaco, in the State of Anzoátegui, when he was

travelling with a group of 60 workers from the mining company who had taken part in a

protest in Caracas on 28 November 2018. The vehicles being used to take the workers back

to Ciudad Guayana were intercepted by approximately 20 officers of the Bolivarian National

Guard and 10 officers of the Directorate General of Military Counter-Intelligence. The rest

of the workers were released after a few hours, but Mr. González Rojas was kept in detention

because a warrant for his arrest had supposedly been requested by Military Prosecutor’s

Office No. 43, in Ciudad Bolívar, on 20 August 2018, in relation to alleged offences of

attacking the military guard, affronting the military guard and affronting the armed forces.

8.

The source explains that, on 12 August 2018, an assembly was being held at one of

the entrances to the mining company and that, while Mr. González Rojas was talking with a

group of workers, officers of the Bolivarian National Guard attempted to apprehend him.

However, the workers who had gathered for the assembly prevented the guards from

apprehending him. The source maintains that, in retaliation for the workers’ conduct, the

authorities proceeded to instigate military justice proceedings through Military Prosecutor’s

Office No. 43, which has jurisdiction in the State of Bolivar. The source notes that there was

no violent conduct on the part of either the workers or Mr. González Rojas, yet, according to

the source, the authorities claim that, in the aforementioned circumstances, Mr. González

Rojas committed offences involving attacks on the military guard and affronts to the armed

forces.

9.

According to the source, on the instructions of the presiding judge of the Criminal

Judicial Circuit, Mr. González Rojas was brought before a court located in another city in

order to prevent any disruption of public order in the State of Bolívar. Thus, on 30 November

2018, in the course of the afternoon, Mr. González Rojas was brought before Military Court

of Due Process No. 15, in Maturín, in the State of Monagas, and was indicted under case No.

FM 43053-2018. He was charged with the offences of affronting the military guard, the

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national flag and the armed forces and attacking the military guard, as established in articles

501, 502, 504 and 505 of the Code of Military Justice.

10.

The source claims that the authorities violated Mr. González Rojas’ right to natural

judgment and an independent judge. According to the source, the trial, this time in military

courts, was a continuation of the relentless persecution of Mr. González Rojas and forms part

of a State policy that has been enforced with greater intensity since April 2015, when, in

response to the massive, ongoing protests that were taking place in the Bolivarian Republic

of Venezuela, the authorities implemented the so-called Zamora Plan, which involved,

among other things, trying civilians in military courts.

11.

The source states that the parties did not at any time make a formal request to have

the case heard before the Supreme Court, which constitutes another irregularity, since the

Supreme Court did not decline jurisdiction on territorial grounds, as established in article 62

of the Organic Code of Criminal Procedure, a situation that again demonstrates the lack of

independence within the judiciary.

12.

According to the source, on 3 December 2018, Mr. González Rojas’ lawyer filed a

brief with Military Court of Due Process No. 15 challenging the fact that his client was being

tried by military courts. It would be up to the Criminal Chamber of the Supreme Court to

decide whether to continue the proceedings within the military justice system or to refer the

case to the ordinary courts.

13.

On the same day, Mr. González Rojas’ legal representatives filed a brief with the State

of Monagas branch of the Office of the Ombudsperson, requesting the Office, which is

mandated under the Constitution to defend the human rights of the people, to also petition

the military court for a change of jurisdiction.

14.

However, even though the defence team had requested a review of jurisdiction before

Military Court of Due Process No. 15, and thus that the case be referred to the ordinary courts,

arguing a violation of the fundamental human right to be tried by a natural judge, who is also

competent, independent and impartial, as established in article 49 (3) and (4) of the

Constitution, it received no response from the Criminal Chamber of the Supreme Court. The

State of Monagas branch of the Office of the Ombudsperson also failed to respond to his

lawyers’ request for corresponding action to address the fact that a civilian was being tried

before military courts.

15.

The source recounts that Mr. González Rojas was charged with committing the above-

mentioned offences before the corresponding legal deadline had passed and the preliminary

hearing was held on 20 February 2019. At this hearing, the prosecution’s case was admitted

in its entirety, despite the defence’s claim that there was insufficient evidence to support this

outcome, and without the lawyers’ petitions being taking into account by the military court

concerned, which rejected all challenges brought. The source maintains that Mr. González

Rojas’ right to a defence, as enshrined in article 49 of the Constitution, was seriously violated.

In addition, throughout the proceedings, his lawyers came up against numerous obstacles in

their attempts to gain access to the case file.

16.

According to the submissions, the hearing began before Military Trial Court No. 5 on

3 July 2019, that is, four months after the preliminary hearing, because no judge had been

available previously, and it had not therefore been possible to continue the criminal

proceedings without interruption.

17.

In addition to the violation of the right to be heard before a natural judge, none of the

items of evidence submitted by Mr. González Rojas’ defence team were taken into account

during the trial. All items were thrown out by the judge, who also dismissed evidence

proffered by the military prosecutor that was crucial to establishing the facts of the case, and,

to an extent, exonerated the detainee. According to the source, all these factors prove the bias

and lack of impartiality of the judge assigned to the case.

18.

The source reports that, on 13 August 2019, Military Trial Court No. 5 convicted Mr

González Rojas by oral judgement and sentenced him to 5 years and 9 months’ imprisonment.

Mr. González Rojas was acquitted of the offence of attacking the military guard (art. 501.1),

but convicted of affronting the military guard (art. 502.1) and affronting the armed forces

(art. 505). The sentence has not yet been published, even though the period of 10 working

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days allowed for publication and notification of decisions has elapsed. Because of this delay,

no appeal against the conviction has been possible.

19.

According to the source, Mr. González Rojas is being held in the wing of Monagas

prison used to house military officers facing trial known as “La Pica” wing, and is the only

civilian being detained in this military detention facility. According to the source, this prison

is a highly dangerous one, in which acts of violence are a frequent occurrence.

20.

The source reports that Mr. González Rojas does not have access to drinking water,

that his relatives have to provide him with food, and that, although his lawyers have

repeatedly petitioned the court to authorize medical treatment, it has never been possible,

even though he has been suffering from kidney disease for more than 10 years. It was not

until he began to experience severe pain and symptoms of ill health that the authorities

allowed him to be provided with medicines. The source maintains that the State is in breach

of its obligation to ensure the health of persons deprived of liberty who are in its custody, in

accordance with article 83 of the Constitution and the United Nations Standard Minimum

Rules for the Treatment of Prisoners (Nelson Mandela Rules).

21.

In addition, the source recounts that, although Mr. González Rojas receives regular

visits from members of his family, these relatives report that they have repeatedly been

subjected to abusive searches, especially the women, who have been subjected to humiliating

and degrading treatment.

22.

The source highlights the provisions of articles 44 and 49 (4) of the Constitution,

which establish the rights to personal liberty and due process, and articles 9 (1) and (3) and

14 (1) of the Covenant, which enshrine the right to liberty and security of person and to

equality before courts and tribunals.

23.

The source maintains that Mr. González Rojas’ detention is illegal and is part of a

systematic pattern of arbitrary detentions. According to the source, trial by a military court

entails a violation of the fundamental safeguard of the right to natural judgement and to

independence and impartiality in the administration of justice. Mr. González Rojas is not a

military officer and therefore cannot commit crimes of a military nature. He cannot be

charged with offences under the Code of Military Justice. The offences with which he is

charged may only be committed by active military personnel in the exercise of their duties,

never by a civilian.

24.

In this context, the source also maintains that Mr. González Rojas has not even

committed acts that could be considered offences under ordinary jurisdiction, since carrying

out his trade union duties within the framework of the Constitution and the conventions of

the International Labour Organization (ILO) does not constitute a crime.

25.

According to the source, there is no evidence against Mr. González Rojas in the case

file, and the military officers who were allegedly attacked and beaten by Mr. González Rojas

have not identified him directly as a perpetrator of violence of any form, nor have they singled

him out individually, nor have they stated that he beat them. Another detail in the case file to

which the source draws attention is that the Prosecutor’s Office in charge of the investigation

(Office No. 43 in Ciudad Bolivar, in the State of Bolivar) made not even the slightest attempt

to hear the alleged aggressors’ version of events, nor did it interview any of the civilians who

took part in the events in question.

26.

The source maintains that Mr. González Rojas’ detention is a result of his having

exercised the rights set out in the Constitution, the Universal Declaration of Human Rights

and the Covenant. As a trade union leader, Mr. González Rojas asserts his right to freedom

of expression, association, peaceful demonstration and assembly. For exercising these rights

he has been persecuted for a number of years and on this occasion he was arrested. According

to the source, Mr. González Rojas is one of the best-known trade union leaders in the

Bolivarian Republic of Venezuela and is the general secretary of the union of one of the

largest metallurgical companies.

27.

The source also highlights that Mr. González Rojas’ detention is part of a campaign

of persecution against the company’s workers, who have been calling for compliance with

the collective agreement since March 2018. On 27 November 2018, nine workers from

Ferrominera del Orinoco were arrested at the gates to company premises when they were

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carrying out a peaceful protest action and waving banners with slogans denouncing the failure

to comply with the collective agreement. The arrest was carried out by officials of the

Directorate General of Military Counter-Intelligence, which is an intelligence agency

forming part of the armed forces. The workers were brought before an ordinary court, which

ordered that they be deprived of their liberty and decreed that they should be placed in

detention in El Dorado prison. The source reports that this is a highly dangerous prison where

violence often occurs. The charges laid against them were treason, obstructing the freedom

to work and causing injury to the nation, among others.

28.

The source maintains that the use of military justice against Mr. González Rojas is

part of a State policy by which civilians who are critical of the Government or who demand

the fulfilment of rights under the Constitution are prosecuted. According to the source, it is a

policy that has been in effect since the implementation, in 2017, of the so-called Zamora Plan

in the context of the protests that were taking place throughout the country.

29.

The source concludes that, through his arbitrary detention, the Government has

violated Mr. González Rojas’ rights under articles 2, 9 and 14 of the Covenant and articles 1,

8, 9, 10, 11, 20 and 23 of the Universal Declaration of Human Rights.

Response from the Government

30.

The Working Group transmitted the source’s allegations to the Government on 28

October 2019 and requested that it submit a response by 27 December 2019. The Government

requested an extension of this deadline and was given until 27 January 2020 to reply. The

Government submitted its response on 27 January 2020.

31.

The Government indicates that Mr. González Rojas was arrested in the context of

criminal proceedings related to his alleged responsibility, as the principal offender, for the

commission of the offences of attacking the military guard, affronting the military guard and

affronting the national armed forces. The criminal proceedings against him are related to

violent acts committed against military officers who were on guard duty at the Ferrominera

del Orinoco facility in August 2018.

32.

The Government reports that Mr. González Rojas’ detention occurred during routine

operations in the State of Anzoátegui when, while carrying out checks on persons and

vehicles, the military officers found that Mr. González Rojas was the subject of arrest warrant

No. 205-18 issued by Military Court of Due Process No. 17, in Ciudad Bolívar, dated 20

August 2018.

33.

Mr. González Rojas’ arrest was sought pursuant to a letter dated 17 August 2018 by

Military Prosecution Service Office of Due Process No. 17. This request was made as a result

of investigations initiated following the events at Ferrominera.

34.

The evidence gathered during the investigation included a letter requesting that the

military initiate criminal investigations, witness statements taken from those involved, a

notice of commission, photographs of the victim, the vehicle and the place where the events

took place, a forensic examination report and certified copies of internal correspondence, all

of which attested to the circumstances linking Mr. González Rojas with the alleged

commission of the above-mentioned offences.

35.

In response to the requests received from the Military Prosecutor’s Office, on 20

August 2018 Military Court of Due Process No. 17 granted the arrest warrant requested, in

accordance with article 236 of the Organic Code of Criminal Procedure. Thus, the Court

issued arrest warrant No. 205-18 on 20 August 2018.

36.

On 29 November 2018, in compliance with this arrest warrant, the officers proceeded

to arrest Mr. González Rojas. This action is recorded in the police report of the same date. At

the time of his apprehension, the officers informed Mr. González Rojas of the reasons for his

arrest and of his rights as a suspect. This action was recorded in the report of notification of

the rights of suspects. There is also an official record of fair treatment, attesting to the fact

that Mr. González Rojas was not subjected to physical, mental or verbal abuse during his

detention.

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37.

On 30 November 2018, Mr. González Rojas was brought before Military Court of

Due Process No. 15 for an initial oral hearing, in accordance with article 236 of the Organic

Code of Criminal Procedure. At the hearing, the Military Prosecutor’s Office formally

charged Mr. González Rojas as the principal offender in the offences of attacking the military

guard pursuant to article 501.1, affronting the military guard pursuant to article 502, and

affronting the national armed forces pursuant to articles 389.1 and 390.1, with the aggravating

circumstances set out in articles 402.1 and 402.12 of the Organic Code of Military Justice.

38.

During the hearing, the private defence lawyers of the accused were allowed freely to

carry out their duties before the court. Mr. González Rojas was also permitted to address the

court and to set out the points he considered important for his defence.

39.

The Court decided to confirm Mr. González Rojas’ detention and agreed that he

should be placed in pretrial detention in the East Wing for Military Prisoners known as “La

Pica”.

40.

On 20 February 2019, a preliminary hearing was held before Military Court of Due

Process No. 15. With regard to the offences attributed to Mr. González Rojas at the

arraignment hearing, the judge admitted the charges brought by the Military Prosecutor’s

Office in their entirety. Likewise, the Court assigned to the case confirmed the custodial

measure and it was agreed that he would stand trial, in accordance with article 314 of the

Organic Code of Criminal Procedure.

41.

On 13 August 2019, the trial took place in public before Military Trial Court No. 5.

The judge found him not guilty of the military offence of attacking the military guard but

convicted him of the military offences of affronting the armed forces and affronting the

military guard, for which he was sentenced to 5 years and 9 months’ imprisonment.

42.

At present, Mr. González Rojas remains deprived of his liberty in the “La Pica” Wing

for Military Prisoners. The conditions in which he is being held are in line with the applicable

standards, including with regard to access to sanitation facilities.

43.

The Government recounts that the criminal proceedings against Mr. González Rojas

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. The detention of Mr. González Rojas

is not the result of, nor related to, the exercise of rights or freedoms protected by articles 1,

8, 9, 10, 20 and 23 of the Universal Declaration of Human Rights and articles 2, 9 and 14 of

the Covenant. The actions of Mr. González Rojas were not committed in the legitimate

exercise of his trade union rights. His detention was the result of an arrest warrant issued in

the context of criminal proceedings in which he was charged with involvement in the

commission of very serious offences.

44.

The Government also notes that article 14 (1) of the Covenant does not expressly

prohibit persons who are not part of the military from being tried before courts with special

competence in military criminal matters, that is, when they are competent ratione materiae.

45.

The Government reiterates that the offences in question are offences of a strictly

military nature that, in the Bolivarian Republic of Venezuela, must be heard and judged

before courts with jurisdiction over military criminal matters. Thus, Mr. González Rojas has

been charged with offences of a strictly military nature that are treated as such within the

national legal system.

46.

The Government points out that jurisdictional competence is determined not by the

persons being prosecuted but by the nature of the offence committed. The courts with

competence in military criminal matters are an integral part of the justice system, as

established in article 261 of the Constitution. They therefore operate under the guidance of

the Supreme Court and, consequently, its Criminal Cassation Chamber acts as the highest

judicial authority in all criminal proceedings before such courts.

47.

The prosecutors who act before the military courts are part of the Public Prosecution

Service and report and are subordinate to the Attorney General of the Republic, who enjoys

full autonomy and independence, in accordance with article 285 of the Constitution. The

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Government asserts that the right to be heard by a natural or independent judge has not been

violated in the present case.

48.

The Government reports that State institutions are committed to respecting, protecting

and strengthening the independence and impartiality of the country’s justice system.

49.

Furthermore, there has been no violation of Mr. González Rojas’ right to remain at

liberty during proceedings, especially since this right is not absolute and is subject to certain

limitations, as provided for by law. The custodial measure of pretrial deprivation of liberty

was approved by a court. Mr. González Rojas’ arrest was the result of a court order and,

consequently, his deprivation of liberty was fully compatible with article 44 of the

Constitution and article 9 of the Covenant.

50.

The Government concludes that Mr. González Rojas’ detention is fully compliant

with the provisions of the Constitution, the Universal Declaration of Human Rights, the

Covenant and other applicable instruments.

Further comments from the source

51.

In their final comments, the source maintains that, under international human rights

law, military criminal jurisdiction is considered a highly specialized system of justice in

which the court must have jurisdiction both ratione materiae and ratione personae and where

only offences of a military nature committed by military personnel should be tried. It is

therefore a system of justice that should be used in a restrictive manner.

52.

The source notes that the Human Rights Committee has recognized the exclusive

nature of military criminal jurisdiction, in establishing that the scope of the military courts’

competence should be limited to strictly military offences committed by military personnel

and cannot be extended to the trial of civilians.1 Accordingly, this is the manner in which

article 14 (1) of the Covenant, which provides that all persons are equal before the courts and

have the right to be heard with all due guarantees by a competent, independent and impartial

tribunal should be interpreted.

53.

The source also notes that the Inter-American Court of Human Rights has also

specified that the trial of civilians should be excluded from the scope of military jurisdiction.2

54.

The source further notes that the Constitution is compatible with international

standards in this area, as it provides, in article 261, that the jurisdiction of the military courts

is limited to offences of a military nature, and that ordinary offences, human rights violations

and crimes against humanity are subject to ordinary jurisdiction. This provision should be

read in conjunction with article 49.4, which provides that “all persons have the right to be

tried by their natural judges in ordinary or special jurisdictions, with the guarantees

established in this Constitution and in the law”.

55.

The source asserts, however, that, contrary to widely established contemporary

international criteria, the Government has stated that offences of a military nature and the

question of jurisdiction over them are defined according to their subject matter. The

Government’s position is based on article 123.2 of the Organic Code of Military Justice,3

which stipulates that military jurisdiction encompasses “military offences committed by

military personnel or civilians, whether jointly or separately”.

56.

The source argues that the aforementioned Organic Code of Military Justice of 1998

predates the Constitution and has been aligned neither with human rights principles and

standards, nor with the international standards that guarantee the independence and autonomy

of judges, despite the many calls for attention to be given to this area made by various

international bodies. Further compounding this situation, this law represents only a partial

reform of the Organic Code of Military Justice of 1938.

1 See CCPR/C/79/Add.104 and CCPR/C/79/Add.13.

2 See Rochela Massacre v. Colombia, judgment of 11 May 2007, merits, reparations and costs, Series C

No. 163.

3 Gaceta Oficial No. 5263, extraordinary issue, 17 September 1998.

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57.

The source asserts that, in the Bolivarian Republic of Venezuela, military justice is

improperly used to try civilians. The principle of natural judgment is also undermined as a

result, since the military judge does not act under the supervision of a competent and impartial

court, and the judicial function is thus devoid of all legitimacy because it lacks the authority

to uphold the basic guarantees of a fair trial, as required under article 10 of the Universal

Declaration of Human Rights.

58.

With regard to the violation of the right to a defence and the principle of liberty, the

source maintains that the detainee’s version of events was never taken into account, either by

the prosecutor or by the judge, and that although the defence team repeatedly petitioned the

Military Prosecutor’s Office, the Office never carried out the procedures that would have

cleared Mr. González Rojas. In addition, the evidence presented by the lawyers was declared

irrelevant. Thus, in the case in hand, all constitutional guarantees of due process, the right to

liberty of person, the right to a defence and the principle of presumption of innocence, as set

out in article 49 of the Constitution and article 12 of the Organic Code of Criminal Procedure,

were undermined; all the prerequisites for equality between the parties in the proceedings

were breached; and article 14 (2) and (3) of the Covenant, as well as articles 10 and 11 of the

Universal Declaration of Human Rights, were violated. The source also states that it was

evident that the initial actions of the police in the proceedings were subject to none of the

required checks and balances.

59.

The source argues that deprivation of liberty is an exceptional precautionary measure

and that the legal prerequisites that authorize custodial measures should be interpreted in a

restrictive manner. Furthermore, although the right to freedom is not absolute, deprivation of

the right is permissible only when the Public Prosecutor’s Office is able to prove before the

judge that all required criteria under article 236 of the Organic Code of Criminal Procedure

have been met. Although an arrest warrant was issued for Mr. González Rojas, it was not

justified because it deprived him of his fundamental right to freedom, in violation of article

9 of the Covenant.

60.

The source maintains that there is no basis to assert, as stated in the Government’s

report on the case, that Mr. González Rojas’ detention is in line with the provisions of the

Constitution and national laws, and with those of the Universal Declaration of Human Rights,

the Covenant, and other applicable instruments signed and ratified by the Bolivarian Republic

of Venezuela.

61.

The source recounts certain procedural irregularities, which compounded the

unjustified procedural delay in the proceedings. Because the conviction served on 13 August

2019 was not published until 29 October 2019, after the legally established deadline for

publication of 10 working days, Mr. Gonzalez Rojas’ lawyers were not informed of the

sentence until 4 November 2019.

62.

The source also asserts that the summing-up that served as the basis for the conviction

did not specify the punishable acts of which the defendant was convicted and contained none

of the usual details of manner, time and place, but simply referred to the events in a generic

fashion, citing police records that lacked precision. This added to the implausibility of the

alleged events: Mr. González Rojas supposedly attempted to disarm two military officers,

but no mention was made of any of the other individuals who were involved or present at the

time.

63.

The source also argues that the indictment is inconsistent with the statements made

by officers of the Military Prosecutor’s Office and the evidence in the case file, from which

it can be gleaned that the testimonies presented in court were a “copy and paste” of the version

drafted by the prosecutor, and that the judge failed to apply the restrictive interpretation that

should be adopted when an individual’s conduct is deemed to constitute a criminal act. This

reflects a failure to comply with the formal requirements that an indictment should satisfy

pursuant to Article 308 of the Organic Code of Criminal Procedure.

64.

The source concludes that there were irregularities in both the initial detention and the

pretrial proceedings, and yet, even so, both were approved by the judicial authorities.

65.

With regard to the obstruction of the exercise of the right to demonstrate, the source

notes that the case provides an example of the criminalization of the legitimate exercise of

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fundamental rights and freedoms, including the right of peaceful assembly and association

and freedom of opinion and expression, as provided for in articles 19 and 20 of the Universal

Declaration of Human Rights and articles 18 and 19 of the Covenant.

66.

The source states that military jurisdiction continues to be used as an instrument of

political retaliation, and that Mr. González Rojas’ detention is strictly related to his leadership

in the exercise of rights and freedoms protected by articles 1, 20 and 21 of the Universal

Declaration of Human Rights.

67.

Lastly, the source reports that Mr. González Rojas suffered a further hypertensive

crisis between 15 and 20 January 2020, from which he is still not fully recovered. His lawyers

are making all necessary arrangements to have him transferred to the nearby health centre,

since the pills he is taking are having less and less effect and his medical history of kidney

disease means that he needs ongoing medical care, but as at 8 February 2020 he had yet to

receive treatment for these recurring health problems. The authorities remain reluctant to

provide members of his family with a copy of an updated report on the union leader’s medical

situation, and continue to refuse to allow him to be treated by his own trusted doctor.

68.

With regard to the Government’s claim that his conditions of detention are in line with

applicable international standards, the source notes that it has not been possible to establish

whether there exists any independent monitoring body that might verify this information in

the present case.

Discussion

69.

The Working Group thanks the parties for the initial submission and subsequent

contributions to the resolution of the present case.

70.

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. Mere assertions

that lawful procedures have been followed will not be sufficient to rebut the source’s

allegations.4

Category I

71.

The Working Group received convincing information that, on 12 August 2018, a

group of workers assembled with Mr. González Rojas at one of the entrances to the premises

of Ferrominera del Orinoco, and that, on this same day, military officers who were providing

on-site security attempted to detain him, but were prevented from doing so by workers

participating in the assembly.

72.

As a result of these events, on 29 November of the same year, when Mr. González

Rojas was travelling home with 60 workers after they had taken part in a protest, their vehicle

was intercepted by members of the Bolivarian National Guard and the Directorate General

of Military Counter-Intelligence, who arrested them. The Working Group is aware that the

rest of the workers were released and that the only person who remained in detention was

Mr. González Rojas.

73.

According to the information provided to the Working Group, Mr. González Rojas

was detained in execution of an arrest warrant requested by the Military Prosecutor’s Office

and granted by a military court on the grounds that Mr. González Rojas had committed the

offences of attacking the military guard and affronting the military guard and the armed

forces. The Government asserts that the acts attributed to Mr. González Rojas are related to

alleged acts of violence committed against the military officers who worked as guards on the

premises of the Ferrominera del Orinoco mining company.

74.

The Working Group notes that, in the afternoon of 30 November 2018, Mr. González

Rojas was brought before Military Court of Due Process No. 15 in Maturín, State of

Monagas, and prosecuted in criminal proceedings for offences under military criminal law.

4 A/HRC/19/57, para. 68.

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According to the source, Mr. González Rojas is being held in the wing used to house military

officers facing or undergoing trial at the Monagas detention facility, known as the “La Pica”

wing, and is the only civilian being detained in this military complex.

75.

The Government alleges that, under domestic law, the military courts have jurisdiction

to try civilians when the offences with which they are charged are offences under the Organic

Code of Military Justice. It further argues that, under domestic law, the military courts form

part of the judiciary and proceedings before these courts are subject to the cassation

procedures of all other courts hearing criminal cases, and that military prosecutors are

attached to the Office of the Attorney General of the Republic and under the authority of the

Attorney General.

76.

The Working Group is aware that article 23 of the Constitution of 1999 recognizes

that:

Treaties, covenants and conventions relating to human rights that have been signed

and ratified by Venezuela have constitutional rank and take precedence over domestic

law insofar as they contain provisions on the enjoyment and exercise of human rights

that are more favourable than those established in this Constitution and the laws of

the Republic, and are immediately and directly applicable by the courts and other

organs of the State.

Consequently, both the Covenant and the American Convention on Human Rights have the

same status as the Constitution and take precedence over all other national legal norms.

77.

The Working Group has repeatedly stated that military courts usually have an adverse

effect on the enjoyment of human rights, including the right to liberty of person, the right to

due process of law, the right to be presumed innocent, the right to equality of arms, the right

to an adequate defence and the right to be tried by a competent, independent and impartial

tribunal.5

78.

In addition, the Working Group wishes to recall that the Human Rights Committee

has also stated that military courts affect the enjoyment of human rights, including the right

to procedural equality and to a fair trial. The trial of civilians by military courts also presents

serious problems for the administration of justice, which must be equitable, impartial and

independent.

79.

The Working Group recognizes that one of the most valuable attributes of civilian

judges is their independence – an attribute that military judges generally lack, as they are

required to obey orders issued by their superiors, and therefore cannot be considered a

“competent, independent and impartial tribunal” within the meaning of article 14 (1) of the

Covenant.6 The fact that military justice officials have to obey superior orders is also a

violation of the right to security of person, as enshrined in article 9 of the Covenant.7

80.

The Working Group is aware that the Inter-American Court of Human Rights has

repeatedly recalled that military criminal jurisdiction must be limited and exceptional, and

reserved exclusively for offences of a strictly military nature committed by military

personnel, and that it cannot be extended to civilians. In other words, military courts can try

only military personnel in active service for offences involving legal interests inherent to

military order, which excludes civilians.8

5 A/HRC/13/30, para. 66 and A/HRC/27/48, para. 66 to 71.

6 E/CN.4/2006/58, principle 8; A/HRC/27/48, para. 69.

7 A/HRC/13/30, para. 67.

8 See Usón Ramírez v. Venezuela, judgment of 20 November 2009, preliminary objection, merits,

reparations and costs, Series C, No. 207, paras. 108 to 111; Ortiz Hernández et al. v. Venezuela,

judgment of 22 August 2017, merits, reparations and costs, Series C No. 338, paras. 148 and 149;

Castillo Petruzzi et al. v. Peru, judgment of 30 May 1999, merits, reparations and costs, Series C No.

52, para. 128; and La Cantuta v. Peru, judgment of 29 November 2006, merits, reparations and costs,

Series C No. 162, para. 142. See also Radilla Pacheco, Fernández Ortega et al. and Rosendo Cantú et

al. v. Mexico, supervision of compliance with judgment, resolution of 17 April 2015, para. 13, and

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81.

Accordingly, the Working Group wishes to recall that the principles connected with

the administration of justice by military courts establish that such courts should, in principle,

have no jurisdiction to try civilians and that in all circumstances States should ensure that

civilians accused of a criminal offence of any nature are tried by civilian courts.9 Similarly,

these principles state that military courts should have limited subject-matter jurisdiction over

offences of a strictly military nature committed by military personnel.10 On this point, the

Working Group has been emphatic in asserting that military courts should have no

jurisdiction to try civilians, inter alia.11

82.

The Working Group also wishes to recall that military courts do not have the

competence to examine the arbitrariness and legality of the detention of civilians. Military

judges and prosecutors do not meet the fundamental requirements of independence and

impartiality. 12 The Working Group notes that Mr. González Rojas was brought before

Military Court of Due Process No. 15 and not before a civilian judicial authority. The

Working Group therefore concludes that there has been a breach of article 9 (3) of the

Covenant.

83.

Because the military courts lack competence, either ratione materiae or ratione

personae, to order and execute an arrest warrant, and such an arrest would have a legal basis

only in the case of serving military officers, Mr. González Rojas’ arrest was carried out

without there being any legal basis and is therefore arbitrary under category I.

Category II

84.

The Working Group is aware that Mr. Gon1zález Rojas has been an employee of a

mining company for decades and, as a trade union leader, works to defend labour rights.

85.

In order to establish whether the deprivation of liberty of Mr. González Rojas resulted

from the exercise of the rights and freedoms guaranteed in the Universal Declaration of

Human Rights, the Working Group recalls that, according to its established practice, all

persons have the right to freedom of expression, which includes the right to impart

information and ideas of all kinds, either orally or through any other media of their choice.

In addition, the Working Group reiterates that the exercise of this right may be subject to

restrictions that are expressly provided for by law and are necessary to ensure respect for the

rights or reputation of others, or for the protection of national security or of public order,

health or morals.13

86.

The Working Group shares the view of the Human Rights Committee that freedom of

opinion and freedom of expression are indispensable conditions for the full development of

the person and constitute the foundation stone for every free and democratic society.14 Both

freedoms, reflected in the Universal Declaration of Human Rights and the Covenant, form

the basis for the full enjoyment of a wide range of other human rights, such as the enjoyment

of the rights to freedom of assembly and association, including the defence of labour rights

by trade unions.15

87.

The Working Group recognizes the importance of the right to freedom of opinion, and

that no Government may violate other human rights on the basis of a person’s actual or

perceived opinions, whether they be of a political, scientific, historic, moral or religious

nature. For the Working Group, it is incompatible with the Universal Declaration of Human

Rights and the Covenant to criminalize the holding of an opinion, which means that, for the

Human Rights Committee, it is impermissible for a person to be harassed, intimidated,

stigmatized, arrested, or subjected to detention, trial or imprisonment, for reasons of the

Palamara Iribarne v. Chile, supervision of compliance with judgment, resolution of 1 September

2016, para. 27.

9 E/CN.4/2006/58, principle 5.

10 A/HRC/13/30, para. 71.

11 Ibid., para. 68 (a).

12 A/HRC/30/37, para. 55.

13 Opinion No. 58/2017, para. 42.

14 General comment No. 34 on freedoms of opinion and expression, para. 2.

15 Ibid., para. 4.

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opinions they may hold. Any attempt, of any form, to coerce persons into holding or not

holding certain opinions is prohibited.16

88.

In the present case, the Working Group was convinced that Mr. González Rojas’

detention was prompted by the exercise of the rights established in the Constitution, the

Universal Declaration of Human Rights, the Declaration on the Right and Responsibility of

Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized

Human Rights and Fundamental Freedoms and the Covenant. The Working Group is aware

that Mr. González Rojas has asserted his right to freedom of expression, association, peaceful

demonstration and assembly in such a way that he has become one of the best known trade

union leaders in the Bolivarian Republic of Venezuela and the general secretary of one of the

largest metallurgical companies. In this context, the Working Group was convinced that Mr.

González Rojas has been deprived of his liberty as a result of the exercise of rights and

freedoms protected under articles 7, 19 and 20 of the Universal Declaration of Human Rights

and articles 19, 21, 22 and 16 of the Covenant.

Category III

89.

In the light of the findings made in relation to category II, in which it concluded that

the detention results from the exercise of the rights to freedom of thought, expression,

assembly and association, the Working Group considers the detention and, by extension, the

trial to be disproportionate and unjustified. However, since a trial has taken place, and in

view of the claims made by the source and the Government’s response, the Working Group

will proceed to analyse whether, in the course of the judicial proceedings, the fundamental

components of a fair, independent and impartial trial were respected.

Right to be heard before an independent and impartial tribunal

90.

The Working Group wishes to recall that, under customary international law, all

persons have the right not to be arbitrarily deprived of their liberty,17 and persons accused of

a criminal offence are entitled in full equality to a fair hearing by an independent and

impartial tribunal for the examination of any charges against them.18

91.

Since Mr. González Rojas, as a civilian, was charged with an offence that can only be

committed by military personnel and is established in a criminal code that applies to the

armed forces, was arrested in execution of an arrest warrant issued by a military court, has

been charged by a military prosecutor and tried by a military court, the Working Group

considers that the Venezuelan authorities violated Mr. González Rojas’ right to natural

judgment and an independent judge, as recognized in articles 9, 10 and 11 of the Universal

Declaration of Human Rights and articles 9 and 14 of the Covenant.

Right to be tried without undue delay

92.

The Covenant recognizes the right of everyone charged with a criminal offence to be

tried without undue delay. 19 The Working Group, like the Human Rights Committee,

considers that delays in criminal proceedings can be justified only by the complexity of the

case or the behaviour of the parties. Otherwise, such delays are incompatible with the

Covenant and undermine the impartiality of a trial. 20 In addition, the Human Rights

Committee has stated that, when such delays are caused by a lack of resources, to the extent

possible States should allocate supplementary budgetary resources.21

93.

The Working Group has previously stated that defendants have the right to be brought

before a judge for trial without delay, and to have the legality of their detention reviewed.22

16 Ibid., paras. 9–10.

17 Article 29 of the Universal Declaration of Human Rights; A/HRC/22/44, paras. 27–75.

18 Article 10 of the Universal Declaration of Human Rights.

19 Article 54, para. 3 (c) of the Covenant.

20 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial,

para. 27.

21 Ibid., para. 27.

22 Opinion No. 78/2018, paras. 75 and 76.

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13

The Working Group recognizes, as the Human Rights Committee has stated, that it is

important for detainees to be physically present at this review. The physical presence of

detainees also serves as a safeguard for their right to physical safety and security of person.23

94.

In the present case, because, since his arrest in November 2018, Mr. González Rojas

has been brought not before a natural judge but before a court that does not have jurisdiction

to try civilians, the Working Group considers that the detention has been arbitrary because

he was not tried without undue delay, as provided for in articles 9, 10 and 11 of the Universal

Declaration of Human Rights, and article 14 of the Covenant.

Equality of arms

95.

The Working Group also recalls that persons charged with a criminal offence have the

right to be presumed innocent and to have a public trial with all due process guarantees.24

One aspect of this right is that national judicial authorities must ensure that the parties to the

proceedings in question have “the right to equal access to present their full case, and equality

of arms”.25 Similarly, persons deprived of their liberty have the right to be accorded adequate

time and facilities to prepare their case and to communicate with legal counsel of their

choice.26

96.

The Working Group has further noted that, in order to preserve this equality of arms:

Every individual deprived of liberty shall be guaranteed the right to have access to

all material related to the detention or presented to the court by State authorities [...].

The requirement that the same procedural rights be provided to all parties is subject

only to those distinctions that are based on law and can be justified on objective,

reasonable grounds and do not entail actual disadvantage or other unfairness to the

detained person.27

In this regard, both the prosecution and the judiciary are under an obligation to ensure that

lawyers have access to relevant information in their possession, such as the testimonies of

witnesses for the prosecution, in sufficient time to enable them to provide effective legal

assistance.28

97.

The foregoing implies that accused persons have the right to present relevant evidence

and testimony for their defence and that evidence and witnesses alike shall be examined by

all parties to the trial. Once the evidence has been thoroughly examined, the court shall assess

it in an objective and reasoned manner and shall rule in accordance with the legislative

provisions of the State.29

98.

In the present case, the Working Group received information from the source, which

was not refuted by the Government, that, in the trial of Mr. Gonzalez Rojas, all evidence put

forward by his defence team was dismissed by the judge. Similarly, the Government failed

to present any information to demonstrate that the criminal case file contained evidence

against Mr. González Rojas gathered from the military officers who were allegedly attacked

by him, evidence to demonstrate that the procedures that would have been required in order

to hear the alleged attackers’ version of events took place, or interviews with civilians who

might have been involved in the events in question. On this basis, the Working Group

acknowledges that Mr. González Rojas’ right to have equal access to present his full case, to

have the evidence put forward thoroughly examined and analysed, and consequently to

equality of arms in the criminal proceedings, was violated.

23 General comment No. 35 (2014) on liberty and security of person, paras. 34 and 42.

24 Article 11 of the Universal Declaration of Human Rights.

25 A/HRC/30/37, principle 12, para. 19.

26 Ibid., principle 9 and guideline 8.

27 Ibid., principle 12, para. 20.

28 See principle 21 of the Basic Principles on the Role of Lawyers, adopted by the Eighth United

Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27

August–7 September 1990.

29 See opinions No. 1/2015, No. 14/2017 and No. 15/2017.

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99.

Since the right to be tried by a competent, impartial and independent tribunal, the right

to be tried without undue delay and the right to equality of arms have been violated to the

detriment of Mr. González Rojas, in contravention of articles 9, 10 and 11 of the Universal

Declaration of Human Rights and 9 and 14 of the Covenant, the Working Group considers

that the detention is arbitrary under category III.

Category V

100.

The Working Group received information to the effect that Mr. González Rojas’

detention is part of a campaign of persecution against workers of Ferrominera, who have

been fighting tirelessly to have the company comply with the relevant collective agreement

since March 2018. Mr. González Rojas has himself suffered constant persecution owing to

his unstinting work in defence of labour rights, and in 2009 he was imprisoned for 15 months.

101.

In the Working Group’s view, Mr. González Rojas’ deprivation of liberty constituted

a violation of international law in that it was a detention based on his political opinion and

his status as the general secretary of a trade union that works to uphold labour rights in the

Bolivarian Republic of Venezuela, in breach of articles 2 and 26 of the Covenant and articles

2 and 7 of the Universal Declaration of Human Rights. His detention therefore falls within

category V of the Working Group’s categories of arbitrary detention.

102.

The Working Group is of the opinion that the detention described in this case is part

of a series of arbitrary detentions ordered by the authorities in the Bolivarian Republic of

Venezuela against members of opposition political parties, human rights defenders and

persons who criticize the actions of the authorities.30

103.

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 and those who defend human rights, 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.31

104.

In the light of the information received about Mr. González Rojas’ health and the

conditions in which he is deprived of his liberty, the Working Group, in accordance with

paragraph 33 (a) of its methods of work, refers the present case to the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or punishment, the Special

Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the

right of everyone to the enjoyment of the highest attainable standard of physical and mental

health.

105.

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

Government and 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.

30 See opinions No. 86/2018; 49/2018; 41/2018; 32/2018; 52/2017; 37/2017; 18/2017; 27/2015;

26/2015; 7/2015; 1/2015; 51/2014; 26/2014; 29/2014; 30/2014; 47/2013; 56/2012; 28/2012; 62/2011;

65/2011; 27/2011; 28/2011; 31/2010; and 10/2009.

31 See opinions No. 86/2018; 49/2018; 41/2018; 32/2018; 52/2017; 37/2017; 18/2017; 27/2015;

26/2015; 7/2015; 1/2015; 51/2014; 26/2014; 29/2014; 30/2014; 47/2013; 56/2012; 28/2012; 62/2011;

65/2011; 27/2011; 28/2011; 31/2010; and 10/2009.

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Disposition

106.

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

The deprivation of liberty of Rubén Darío González Rojas, being in contravention of

articles 2, 7, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and

articles 2, 9, 14, 19, 21, 22 and 26 of the International Covenant on Civil and Political

Rights, is arbitrary and falls within categories I, II, III and V.

107.

The Working Group requests the Government of the Bolivarian Republic of

Venezuela to take the steps necessary to remedy the situation of Mr. González Rojas 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.

108.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. González Rojas immediately and accord

him an enforceable right to compensation and other reparations, in accordance with

international law.

109.

In the context of the current global pandemic caused by the coronavirus disease

(COVID-19) and the threat that the disease poses in places of detention, the Working Group

calls on the Government to take urgent action to ensure the immediate release of Mr.

González Rojas.

110.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

González Rojas and to take appropriate measures against those responsible for the violation

of his rights.

111.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, the Special Rapporteur on the independence of judges and lawyers

and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable

standard of physical and mental health.

112.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

113.

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. González Rojas has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. González

Rojas;

(c)

Whether an investigation has been conducted into the violation of Mr.

González Rojas’ 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.

114.

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.

115.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

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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.

116.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has 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.32

[Adopted on 1 May 2020]

32 See Human Rights Council resolution 42/22, paras. 3 and 7.