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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. 20/2020 concerning Héctor Armando Hernández Da Costa

(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 14 October 2019, the

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

communication concerning Héctor Armando Hernández Da Costa. The Government

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

response was submitted on 10 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, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

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General Assembly

Distr.: General

18 June 2020

English

Original: Spanish

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Submissions

Communication from the source

4.

Héctor Armando Hernández Da Costa is a Venezuelan national who lives in the

municipality of Chacao in Caracas. Mr. Hernández Da Costa is a brigadier general in the

Bolivarian National Guard and was 51 years of age when he was deprived of his liberty.

5.

According to the submissions, Mr. Hernández Da Costa was arrested on 13 August

2018 in his apartment in Chacao when a group of hooded men wearing black uniforms and

caps identifying them as officers of the Directorate General of Military Counter-

Intelligence showed up, carrying long weapons and tools for forcing open the door of the

apartment and shouting that they were looking for Mr. Hernández Da Costa on the orders of

the President. Outside the building, the street was occupied by about 40 officers of the

Directorate General of Military Counter-Intelligence, the Bolivarian National Police Force

and groups of civilians and individuals affiliated with the Government.

6.

The source states that Mr. Hernández Da Costa opened the door but was not at any

time shown a court order for his arrest or the officers’ personal identification documents.

Furthermore, no prosecutor representing the Public Prosecution Service was present. He

was beaten, handcuffed and forcibly removed while another group of hooded men entered

the apartment without a search warrant and proceeded to confiscate items of financial value

including jewellery, cash, mobile phones, computers, USB sticks, watches and a weapon

registered in the name of Mr. Hernández Da Costa that would subsequently be used as

evidence against him. Over the next few days, three more raids were carried out, during

which evidence against him was planted.

7.

According to the source, Mr. Hernández Da Costa’s family was threatened and told

that they would never see him again. Family members were prevented from saying goodbye

to him and, in some cases, were threatened with rape.

8.

The source reports that Mr. Hernández Da Costa was recovering in his room from

his third gastrointestinal operation when the group showed up without warning, threatened

his family and forced him to accompany them despite his delicate state of health. He was

forcibly removed by the intelligence agencies in an unmarked vehicle in which numerous

officers beat him and physically and mentally abused him. He was subsequently detained at

the headquarters of the Directorate General of Military Counter-Intelligence in Boleíta,

Caracas.

9.

The source states that Mr. Hernández Da Costa was detained for several days during

which neither his lawyers nor his family members had access to him. He was thus missing

from 13 to 18 August 2018. On Sunday, 19 August 2018, he was brought before Procedural

Court No. 1 with competence to hear terrorism-related cases, along with six other persons

who would subsequently be tried for the attempted assassination that had taken place on 4

August 2018. On this occasion, it was reported that the arrest warrant had been signed on

18 August 2018, that is, five days after Mr. Hernández Da Costa’s arrest.

10.

The source affirms that, during the first court hearing, it was established that Mr.

Hernández Da Costa had been unlawfully detained as there was no evidence against him. In

view of this serious judicial error, the judge suspended the hearing for unknown reasons

until 21 August 2018, when Mr. Hernández Da Costa was deprived of his liberty after false

evidence had been planted in his home by officers of the Directorate General of Military

Counter-Intelligence. The judge thus found false evidence on the basis of which to

incriminate and detain Mr. Hernández Da Costa. At that time, no mention was made of the

charges that would be brought against him.

11.

According to the source, the fact that the trial is taking place in a civilian court,

when the accused is a high-ranking, serving member of the military, is a further indication

that his right to be tried by a natural judge, as established in article 49 (4) of the

Constitution, is being violated. The source adds that, in accordance with the law, all

generals must have a preliminary hearing on the merits before being tried for any offence.

12.

According to the source, the court maintained that Mr. Hernández Da Costa had

been involved in the attack on the President of the Republic that took place during the

events organized on 4 August 2018 to honour the Bolivarian National Guard. The source

explains that, according to the authorities, Mr. Hernández Da Costa was detained for having

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allegedly been involved in the use of drones at an event attended by the President on the

anniversary of the Bolivarian National Guard’s establishment.

13.

According to the source, the General has been accused of committing eight offences:

treason; attempted murder of the President of the Republic; attempted murder with

malicious intent and futile motives; terrorism; financing of terrorism; criminal association;

continuing incitement of public disorder; and conspiracy.

14.

According to the source, there is no legal basis for the detention since the evidence

against Mr. Hernández Da Costa is false and includes the gun that was registered in his

name, a forged document and an unknown chemical substance as well as false witnesses

put forward by the Directorate General of Military Counter-Intelligence. No family

members, defence lawyers or neighbours were present when the false evidence was

fabricated. The source also states that Mr. Hernández Da Costa was not caught in flagrante

delicto and that there are no witnesses or any other evidence. The source maintains that Mr.

Hernández Da Costa is innocent of all the charges brought against him.

15.

The source reports that Mr. Hernández Da Costa was held for 40 days. During the

second week of his detention, he was brought before Procedural Court No. 20 with

competence to deal with terrorism-related cases, which implicated him in the failed

assassination of 4 August 2018. He was kept in handcuffs throughout this period, which

caused loss of feeling in his right hand and severe pain in his lower back. Mr. Hernández

Da Costa was never examined by a forensic doctor and this situation was not taken into

account by the judge.

16.

The source also states that members of the Directorate General of Military Counter-

Intelligence tortured Mr. Hernández Da Costa to force him to make a false statement

implicating the leaders of the political opposition in the alleged attempted assassination.

According to the source, Mr. Hernández Da Costa refused to make a video accusing people

who, like himself, were innocent of this act. The authorities who tortured him insisted that

he could go from being a suspect to a witness and that he would be released within a matter

of hours. Mr. Hernández Da Cosa refused to make false statements and was repeatedly

subjected to physical and psychological torture, being beaten with blunt objects on different

parts of his body, left hanging from the handcuffs he was wearing, called by a made-up

name and charged with the events of 4 August 2018.

17.

According to the source, he was not allowed to go to the bathroom during the week

in which he was held hostage despite the fact that he had undergone three gastrointestinal

operations in less than six months and had a medical certificate, endorsed by forensic

doctors at El Llanito Hospital, stating that he had an open wound that endangered his health

and placed him at risk of contracting an infection. He was held incommunicado, without

being able to see his family or his lawyer, for 40 days. The first visit was cancelled without

explanation.

18.

The source also reports that the authorities placed Mr. Hernández Da Costa and two

other military officials in a small punishment cell known as “el tigrito”, where detainees are

sent when the authorities believe that they have broken some rule.

19.

Mr. Hernández Da Costa was deprived of the right to spend time outdoors every day.

He has spent 13 months in the basement of the Directorate General of Military Counter-

Intelligence, isolated from the outside world and prevented from engaging in mentally

stimulating activities such as reading books or writing letters and denied access to religious

materials or family photos. The source also reports that he has been deprived of the right to

engage in recreational and sporting activities.

20.

The information received indicates that Mr. Hernández Da Costa’s hearings, like the

hearings of other persons tried in this and all other politically motivated cases in the country,

whether civil or military, were repeatedly adjourned for unknown reasons that deliberately

prolonged the trial, in this case by 11 months, only for the judge to then admit all the

charges formulated by the Public Prosecution Service, ruling that Mr. Hernández Da Costa

should remain in detention and establishing that he would be brought to trial on an

unspecified date. The lawyers did not even receive the court’s formal written judgment. To

date, the defendants have been deprived of their liberty for 13 months without being given

any opportunity to defend themselves.

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21.

The source reports that, during the preliminary hearing, the detainees in this case

claimed to have been tortured in the presence of the prosecutors.

22.

The source states that family members must bring him drinking water as none is

otherwise available. So-called soft torture is used, that is, the light is left on 24 hours per

day. The cell is locked with two padlocks, which prevents the detainees from moving

around. The source asserts that conditions can therefore be described as inhuman and that,

as a result, Mr. Hernández Da Costa has progressively lost his sight and memory, cannot

differentiate between day and night and does not know what time of day it is. According to

the source, Mr. Hernández Da Costa must share his living space with rats, other rodents and

insects and is exposed to bacteria and recurring illnesses such as diarrhoea, flu and hepatitis.

The detainees have no access to an infirmary or health care.

23.

According to the submissions, Mr. Hernández Da Costa was confined to a small cell

with a vaulted door with a slot at the bottom through which his food was delivered every

day. The poor hygienic conditions in rooms of this kind, in which inmates must share

latrines, is putting Mr. Hernández Da Costa’s health at risk. Furthermore, a surveillance

camera is pointed at the latrine, invading his personal privacy. The camera is fitted with an

infrared light that enables it to capture images at night. The bunks are made of cement and

do not have ladders, making it difficult for detainees to get into bed as they have to climb

up the walls. He has no access to communal areas and is only allowed to go to an outside

bathroom, used by 60 persons, for a maximum of one minute.

24.

The source states that there is no basis or grounds for the deprivation of liberty under

the Constitution or national law. According to the source, in accordance with the State’s

obligation to guarantee the enjoyment and exercise of human rights (art. 19 of the

Constitution), and in conformity with articles 1 and 9 of the Universal Declaration of

Human Rights and article 5 (1) and (9) of the Covenant, article 44 of the Constitution

provides that personal liberty is inviolable and that the use of false positives or evidence to

incriminate innocent persons is illegal and arbitrary.

25.

The source also states that the freedoms protected in international instruments are

not respected in the Bolivarian Republic of Venezuela. For this reason, the number of

detainees, both military and civilian, is rising.

26.

With regard to the question of whether international standards relating to the right to

a fair and impartial trial (in particular, articles 9 and 10 of the Universal Declaration of

Human Rights and, as far as States parties are concerned, articles 9 and 14 of the Covenant)

have been fully or partially met, the source argues that the Bolivarian Republic of

Venezuela is a State that does not respect the right to a fair and impartial trial and that

certain powers dominate the executive, the judiciary and the citizenry.

27.

Lastly, the source states that Mr. Hernández Da Costa has been detained in order to

incriminate an innocent man and thereby issue a warning to other members of the

Bolivarian National Guard.

28.

The source reports that, on 23 September 2019, Mr. Hernández Da Costa was moved

from the headquarters of the Directorate General of Military Counter-Intelligence without

his relatives’ knowledge. Consequently, he was reported missing again on 26 September

2019. On this date, a certificate of existence was requested because his health was a matter

of concern and he needed specialist care, extensive treatment and adequate nutrition. The

request was ignored. At the time of the communication, an unofficial source reported that

Mr. Hernández Da Costa was being held at the military police headquarters within the

Fuerte Tiuna military complex.

29.

The source argues that, despite the lack of credible evidence against Mr. Hernández

Da Costa, he is still awaiting a trial for which no date has been set. Mr. Hernández Da

Costa is part of a large group of military personnel who are being prosecuted or

investigated because they are suspected or have shown signs of not supporting the regime

and are therefore implicated in conspiracy and charged with treason, instigating rebellion or

offences against military decorum. Members of the Bolivarian National Guard are the most

numerous component of this group. The source states that the common practice of

persecuting members of the armed forces is intended to intimidate them.

30.

The political persecution of Mr. Hernández Da Costa began in 2015, when he was

left without a position in his branch of the armed forces (the Bolivarian National Guard)

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after having been chief of the anti-drugs squad and then chief of staff for comprehensive

defence in the capital region. Subsequently, in 2017, he was passed over for promotion to

the next highest rank, major general, despite being ranked first in his cohort.

31.

The source concludes that the irregularities committed in the case of Mr. Hernández

Da Costa provide further evidence of the arbitrariness and impunity that characterize the

national justice system, which is used to persecute members of different social groups so

that they do not openly challenge the regime.

Response from the Government

32.

The Working Group transmitted the source’s allegations to the Government on 14

October 2019 and requested that it submit a response by 13 December 2019. The

Government requested an extension of this deadline and was given until 13 January 2020 to

reply. The Government submitted its response on 10 January 2020.

33.

The Government states that Mr. Hernández Da Costa was arrested in the context of

criminal proceedings brought against him as the alleged perpetrator of offences of treason,

attempted murder of the President of the Republic, attempted murder with malicious intent

and futile motives, detonating an explosive device at a public gathering, criminal

association, violent damage to property and terrorism.

34.

The criminal proceedings against Mr. Hernández Da Costa are related to the

attempted assassination that took place on 4 August 2018, during the commemoration of

the anniversary of the Bolivarian National Guard, in which the highest authorities of the

State participated. When the President of the Republic was making a speech, he was

interrupted by the detonation of two explosive devices on two remotely operated drones.

Several military personnel were wounded in the attack.

35.

Offices Nos. 67 and 83 of the Public Prosecution Service submitted a written request,

dated 16 August 2018, for Mr. Hernández Da Costa’s arrest to Specialized First Instance

Procedural Court No. 1, which is competent to deal with terrorism-related cases, has

national jurisdiction and is based in Caracas. This request was made in the wake of an

investigation initiated on 4 August 2018.

36.

According to the criminal investigation report, Mr. Hernández Da Costa and other

persons were linked to the attempted assassination and terrorist attack perpetrated against

the President’s physical integrity during the official broadcast of the event held to

commemorate the eighty-first anniversary of the Bolivarian National Guard on Avenida

Bolívar in the Capital District of the city of Caracas. Drones carrying explosive charges

were used to carry out the attack.

37.

The Government also notes that, according to the criminal investigation report, Mr.

Hernández Da Costa was linked to violent activities perpetrated at various military units,

including the attack on, and removal of military supplies from, the facilities of the forty-

first armoured brigade, the attack on, and removal of military supplies from, the facilities of

the second platoon of the third company at Puesto Laguneta de la Montaña, detachment No.

441 of the Bolivarian National Guard, and the unsuccessful coup to prevent the presidential

elections of 30 May 2018. All these activities involved attacks on the President’s physical

integrity.

38.

In response to the request submitted by the Public Prosecution Service on 17 August

2018, Specialized First Instance Procedural Court No. 1 granted the requested arrest

warrant, by reasoned decision, in accordance with article 236 of the Code of Criminal

Procedure.

39.

In view of the above, Specialized First-Instance Procedural Court No. 1 issued an

arrest warrant dated 17 August 2018.

40.

In this case, the proceedings were conducted by the Directorate General of Military

Counter-Intelligence, acting as a criminal investigation body appointed by the court hearing

the case, in accordance with the provisions of article 113 of the Code of Criminal Procedure

and article 3.4.5 of the Directorate’s general regulations.

41.

On 19 August 2018, Mr. Hernández Da Costa was brought before Specialized First

Instance Procedural Court No. 1, which is competent to deal with terrorism-related cases

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and has national jurisdiction, for the oral hearing at which the defendants appeared in

accordance with article 236 of the Code of Criminal Procedure.

42.

At the hearing, the Office of the Attorney General formally charged Mr. Hernández

Da Costa with the offences of treason, which is proscribed and punishable under article 128

of the Criminal Code; attempted murder of the President of the Republic, proscribed and

punishable under article 405, read in conjunction with article 406.3 (b) and in the context of

article 80 of the Criminal Code; attempted murder with malicious intent and futile motives,

proscribed and punishable under article 405, read in conjunction with article 406.2 and in

the context of article 80 of the Criminal Code; detonating an explosive device at a public

gathering, proscribed and sanctioned in article 296 in the context of article 297 of the

Criminal Code; causing violent damage to property, proscribed and punishable under article

473 in the context of article 474 both of the Criminal Code; terrorism, proscribed and

punishable under article 52 of the Organized Crime and Financing of Terrorism Act; and

criminal association, proscribed and punishable under article 37 of the same Act.

43.

During this hearing, Mr. Hernández Da Costa’s private defence lawyers were able to

carry out their work freely before the court presiding over the case. At no time did these

lawyers question the ordinary court’s competence to try the defendant.

44.

Mr. Hernández Da Costa was also permitted to address the court and set out the

points he considered central to his defence. At no point did he mention to the judge hearing

the case any of the allegations made by the source about alleged acts of torture, threats

against his relatives or the planting of false evidence in his home.

45.

The Government maintains that Mr. Hernández Da Costa and his defence lawyers’

failure to report violations of the right to personal integrity and due process during the first

hearing contrasts with the information that the source has submitted to the Working Group.

This confirms that the facts alleged before this body do not tally with the facts of the case

and the arguments put forward by Mr. Hernández Da Costa and his defence lawyers in the

domestic proceedings.

46.

The Specialized First Instance Procedural Court No. 1, which is competent to deal

with terrorism-related cases and has national jurisdiction, decided to authorize Mr.

Hernández Da Costa’s detention and to order that he be placed in pretrial detention at the

Directorate General of Military Counter-Intelligence.

47.

On 29 July 2019, the preliminary hearing was held before Specialized First Instance

Procedural Court No. 1. At this hearing, the judge admitted all the charges brought by the

Public Prosecution Service against Mr. Hernández Da Costa at the first hearing. The court

also upheld the custodial measure imposed on Mr. Hernández Da Costa and ordered that he

stand trial in accordance with article 314 of the Code of Criminal Procedure. Public oral

proceedings against Mr. Hernández Da Costa are currently under way.

48.

Mr. Hernández Da Costa is being held in detention at the Directorate General of

Military Counter-Intelligence. The conditions in which he is being held meet the applicable

international standards, including with regard to access to sanitary facilities.

49.

The Government maintains that the criminal proceedings brought against Mr.

Hernández Da Costa have at all times been conducted in strict compliance with the

guarantees of due process, fair trial and impartiality established in the Universal

Declaration of Human Rights and articles 9 and 14 of the Covenant, without breach,

whether partial or total, of the applicable international regulations of a gravity that would

render the deprivation of liberty arbitrary.

50.

Criminal proceedings are being brought against Mr. Hernández Da Costa by the

ordinary courts in accordance with article 261 of the Constitution, which provides that the

court that hears a case depends not on the individual concerned but on the nature of the

offence committed.

51.

The Government stresses that at no point during the domestic proceedings have Mr.

Hernández Da Costa’s private defence lawyers questioned the competence of the ordinary

court to hear the case, despite the existence of various mechanisms that would have enabled

them to do so. The allegations now being made to the Working Group have never been

invoked in the domestic proceedings.

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52.

Furthermore, in the present case, there has been no violation of Mr. Hernández Da

Costa’s right to remain at liberty during the proceedings, particularly as this right is not

absolute and is subject to certain restrictions that are duly established by law and based on

legitimate grounds. In this case, pretrial detention was duly ordered by a court after it had

verified that the relevant procedural requirements, as set out in articles 237 and 238 of the

Code of Criminal Procedure, had been upheld.

53.

The Government concludes that Mr. Hernández Da Costa’s detention is fully in

accordance with the Constitution, national laws, the Universal Declaration of Human

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

Republic of Venezuela.

Further comments from the source

54.

The Working Group transmitted the Government’s response to the source on 14

January 2020. The source submitted final comments and observations on the Government’s

response on 28 January 2020.

55.

In these final observations, the source opposes the criminal proceedings against Mr.

Hernández Da Costa and maintains that he is innocent and that he never participated in the

alleged attempted assassination on 4 August 2018 since he was never present at the site of

the event, did not know the material perpetrators identified by the Public Prosecution

Service by sight and had never communicated or had dealings with them.

56.

Mr. Hernández Da Costa’s movements and the georeferenced position of his

telephone, which was seized by the Directorate General of Military Counter-Intelligence,

show that he has never been to Colombia, where, according to the Public Prosecution

Service, the offence for which he is being prosecuted was planned and prepared. This

electronic device bears no trace of any calls or messages that might implicate Mr.

Hernandez Da Costa in the alleged attempted assassination or in any conspiracy of the type

of which he is charged.

57.

The source states that attempts are being made to link Mr. Hernández Da Costa to

other conspiratorial acts that are not even part of the proceedings brought against him.

These attempts are based on forged police reports for which there is no basis nor any

witnesses or evidence.

58.

The source states that, on Monday, 13 August 2018, Mr. Hernández Da Costa was at

his home in the Chacao municipality of Caracas when he was arrested by a group of

approximately 40 men who were wearing balaclavas and black clothing bearing the letters

“DGCIM”. They were also carrying long weapons and blunt objects such as

sledgehammers, hammers and metal devices for opening doors. These officers demanded

that Mr. Hernández Da Costa accompany them as a detainee but did not comply with the

legal requirements for this procedure. In other words, they failed to show any credentials, to

make their names known or even to explain their mission, nor did they show any search or

arrest warrant, because they did not have one, no such warrant having been issued by a

judge at the time of Mr. Hernández Da Costa’s arrest.

59.

The source reiterates that Mr. Hernández Da Costa was arrested on 13 August 2018

and not on 16 or 18 August 2018. There is a demonstrable inconsistency in the false date of

arrest that hides the truth about the case. Mr. Hernández Da Costa was abducted and held in

an unknown location from 13 to 19 August 2018, when he was brought before the First

Instance Procedural Court. The source argues that the arresting officials thereby violated

the Constitution, which provides that no one may be arrested without a warrant issued by a

judge, except when a person has been caught in the act of committing an offence.

60.

The source states that, on the night of 13 August 2018, Mr. Hernández Da Costa was

subjected to physical and verbal ill-treatment and was beaten in the lumbar region with the

butt of a long weapon. Furthermore, several weapons were pointed at his head and he was

handcuffed and beaten while being forced into an unmarked taxi. His handcuffs were kept

on and his hands were immobilized for a week. He lost the feeling in his right hand and was

prevented from going to the bathroom for several hours a day until the guard, who showed

no regard for his medical condition, decided to allow him. He was never treated for his

fragile state of health and no forensic doctors ever came to examine him.

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61.

From 4 December 2017 until the date of his arrest (13 August 2018), Mr. Hernández

Da Costa was on medical leave at home after having undergone three gastrointestinal

operations.

62.

The source affirms that, during the early days of Mr. Hernández Da Costa’s

detention, officials offered to release him if he named opposition politicians. Mr.

Hernandez Da Costa turned down this offer. He was then subjected to torture and cruel,

inhuman and degrading treatment in that he was beaten with blunt objects, hung by his

arms and suspended in the air by a torture device called a señorita and kept in this position

for several days without access to water, food or a bathroom. Although he was still

recovering from his third gastrointestinal operation, he was beaten by officials, subjected to

white torture (his light was left on for 24 hours a day), and denied access to health care,

dental care, a lawyer, his family or a telephone.

63.

The source notes that Mr. Hernández Da Costa was brought before the courts on 19

August 2018, where he was charged with an act that he did not commit. It also notes that

there is no evidence against him. The officials who tortured him appeared as witnesses at

the trial. According to the source, this demonstrates that there was a deliberate intent to

incriminate him in an act that he did not carry out.

64.

The source also notes that the authorities forged police reports and planted false

evidence in Mr. Hernández Da Costa’s home in order to incriminate him in the events of 4

August 2018.

65.

The source rejects the accusation that Mr. Hernández Da Costa conspired with the

naval command brigade known as Bricomar to prevent the presidential election since, on 20

May 2018, he was still convalescing and in a delicate state of health following his second

surgical operation, which had taken place on 15 May 2018 at the Military Hospital and for

which evidence can be found in the medical records of Caracas Military Hospital.

66.

The source also notes that, at the first hearing on 19 August 2018, the judge charged

him with a number of offences linked to accusations intended to incriminate him in

terrorism-related offences. The judge stated at the hearing that no arrest warrant had been

issued and that therefore, at the time of arrest, no reference was made to criminal

proceedings because no committal or search warrant had ever been issued by a judge or a

legally constituted national authority. Therefore, since none of the elements that enable

criminal proceedings to be brought were present, it was not possible to speak of criminal

proceedings against the person concerned.

67.

According to the source, the accused’s defence lawyers showed at the hearing that,

when his home was raided by officials wearing balaclavas and carrying long weapons,

neither he nor his family members were handed or shown any order issued by the court.

The source therefore concludes that there is no legal basis for holding Mr. Hernández Da

Costa in detention in accordance with legally established criminal procedure.

68.

The source notes that Mr. Hernández Da Costa was detained in the basement of the

Directorate General of Military Counter-Intelligence in Boleíta, Caracas, from 13 August

2018 until 23 September 2018, when he was transferred, without a judge’s order and

without being given prior notice, to the annex of the Directorate, the so-called Guaidó

Prison.

69.

Mr. Hernández Da Costa’s right to have contact with his family is not respected as

he must speak to them through a sheet of glass in a space measuring 2 m x 2 m and the

meetings are continuously filmed by the on-site security staff. He has no access to drinking

water, a clock or a digital telephone and is not permitted to make telephone calls, write

letters or keep a family photo.

70.

Mr. Hernández Da Costa is locked up around the clock and has no access to

specialized health care, which puts his health at risk as he has undergone three

gastrointestinal operations and has diabetes, high blood pressure and other serious health

problems. He is also denied confidential access to his defence lawyers. If a family member

or authorized visitor disregarded these prohibitions, he or she was immediately detained

and tortured.

71.

The source also notes that the military courts have ceded jurisdiction to a court

specializing in terrorism that is authorized to subrogate powers from other jurisdictions,

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reducing Mr. Hernández Da Costa to a common political prisoner who receives no

protection from the military justice system. In other words, he is being tried without the

benefit of any procedural guarantees arising from his status as a serving military officer.

Discussion

72.

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

contributions to the resolution of the present case.

73.

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.1

74.

The Working Group will proceed to analyse whether the detention of Mr. Hernández

Da Costa, brigadier general of the Bolivarian National Guard, was arbitrary in accordance

with the information provided by the parties.

(a)

Category I

75.

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

76.

In addition, for the Working Group persons deprived of their liberty are entitled to

be informed by the authorities, at the time of their arrest, of their right to be assisted by a

lawyer of their own choosing.5 Persons who have been arrested also have the right to be

informed promptly of the charges against them.6

77.

The Working Group has been convinced by the information to which it has had

access that Mr. Hernández Da Costa was arrested on 13 August 2018, in his apartment, by

hooded men in black uniforms and caps identifying them as members of the Directorate

General of Military Counter-Intelligence. The Working Group has been informed that the

officials who knocked on Mr. Hernández Da Costa’s door announced that they were

looking for him on the orders of the President and that dozens of members of the

Directorate General of Military Counter-Intelligence, the Bolivarian National Police and

civilians affiliated to the Government participated in the operation.

78.

The Working Group has been convinced that the officials who arrested Mr.

Hernández Da Costa did not identify themselves properly, that a prosecutor representing the

Public Prosecution Service was not present among them, and that they did not show him an

arrest or search warrant issued by a competent authority, despite the fact that the

Government claims that an investigation had been under way since 4 August 2018. The

Working Group recalls that any evidence obtained in an irregular manner cannot serve to

justify a decision to detain a person.7

79.

The Government acknowledges in its response that the Office of the Attorney

General did not request an arrest warrant from the court hearing the case until 16 August,

despite the fact that the arrest had been carried out three days earlier, as specified above.8

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

2 Article 9 (2) of the Covenant.

3 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37), principle 7. Right to

be informed.

4 General comment No. 35 (2014) on liberty and security of person, para. 25.

5 A/HRC/30/37, principle 9. Assistance by legal counsel and access to legal aid.

6 Article 9 (2) of the Covenant.

7 Opinions Nos. 83/2019, 33/2019, 31/2019, 83/2018, 78/2018 and 36/2018.

8 Opinion No. 46/2018, para. 46.

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The Working Group has received convincing information, which is not refuted by the

Government, indicating that the arrest warrant was signed on 18 August 2018.

80.

The Working Group has been convinced that Mr. Hernández Da Costa was missing

from 13 to 18 August 2018 and was not brought before the court until Sunday, 19 August

2018, along with six other persons who were apparently being prosecuted for eight offences

related to the assassination attempt that occurred on 4 August 2018.

81.

Furthermore, as the Working Group has stated on previous occasions,

9

incommunicado detention amounts to a prima facie enforced disappearance, which has

been universally condemned as a denial of the purposes of the Charter of the United

Nations and as a grave and flagrant violation of the human rights and fundamental

freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and

developed in international human rights instruments.10

82.

The Working Group recalls that enforced disappearances violate numerous

substantive and procedural provisions of the Covenant and constitute a particularly

aggravated form of arbitrary detention.11 For the Working Group, incommunicado detention

and enforced disappearance restrict the rights to have access to a lawyer of one’s own

choosing, to be brought promptly before a judicial authority and to challenge before a judge

the lawfulness of the detention, which in turn implies a violation of article 9 of the

Universal Declaration of Human Rights and article 9 (3) of the Covenant.12

83.

In the light of the above, the Working Group considers the detention of Mr.

Hernández Da Costa, for the aforementioned period, to be arbitrary in accordance with

category I.

(b)

Category III

Independence and impartiality of judicial bodies

84.

As the Government has pointed out, the proceedings were conducted by the

Directorate General of Military Counter-Intelligence, acting as a criminal investigation

body appointed by the court hearing the case, in accordance with article 113 of the Code of

Criminal Procedure and article 3.4.5 of the Directorate’s general regulations.

85.

In this connection, the Working Group wishes to highlight that both the Universal

Declaration of Human Rights and the Covenant recognize the right of everyone accused of

an offence to a fair and public hearing, with every guarantee, by a competent, independent

and impartial tribunal.13

86.

Access to a public hearing by a competent, independent and impartial court is a key

element of protection for other human rights, as it is designed to ensure the proper

administration of power and guarantee a series of specific rights.14 The Human Rights

Committee has recalled that the requirement of competence, independence and impartiality

of judicial bodies is an absolute right that is not subject to any exception.15 Impartiality

should be understood, first, as a requirement that judges must not allow their decisions to be

influenced by personal bias or prejudice; nor must they harbour preconceptions about the

particular case before them or act in ways that promote the interests of one of the parties to

the detriment of another. Second, the judicial body must also appear to a reasonable

observer to be impartial.16

87.

In addition, the Working Group is aware that the Special Rapporteur on the

independence of judges and lawyers has noted that the Guidelines on the Role of

Prosecutors are, “at the global level, the main instrument specifically aimed at regulating

9 Opinions Nos. 76/2017, para. 59, and 19/2019, para. 34.

10 Declaration on the Protection of All Persons from Enforced Disappearance, art. 1.

11 General comment No. 35, para. 17.

12 Opinion No. 53/2016, para. 47.

13 Article 10 of the Declaration and article 14 of the Covenant.

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

para. 2.

15 Ibid., para. 19.

16 Ibid., para. 21.

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the profession of prosecutors”.17 With this in mind, the Working Group would like to recall

that the preamble to these Guidelines reaffirms the rights to equality before the law, to be

presumed innocent and to a fair and public hearing by an independent and impartial

tribunal.18 These rights are enshrined in the Universal Declaration of Human Rights,19 the

Covenant20 and the American Convention on Human Rights, among other instruments.21

88.

The Working Group is of the view that the criteria of competence, impartiality and

independence, and in general the guarantees of a fair trial required of judges, are also

applicable to prosecutors, as the latter have a key role in the administration of justice and

the fight against crime. In accordance with international human rights law, prosecutors are

under an obligation to perform their duties fairly, consistently and expeditiously, to respect

and protect human dignity and to uphold human rights.22 Their obligations include carrying

out their duties impartially, acting with objectivity and paying due attention to all relevant

circumstances. 23 In this connection, as pointed out by the Special Rapporteur on the

independence of judges and lawyers:

Prosecutors are the essential agents of the administration of justice, and as such

should respect and protect human dignity and uphold human rights, thus

contributing to ensuring due process and the smooth functioning of the criminal

justice system. Prosecutors also play a key role in protecting society from a culture

of impunity and function as gatekeepers to the judiciary.24

89.

In this regard, the Working Group underscores the importance of prosecutors’ active

role in criminal proceedings and, more generally, in protecting society against crime. This

role includes instituting prosecutions, investigating offences, monitoring the lawfulness of

proceedings and the enforcement of court judgments and exercising other functions as

representatives of the general public interest.25 For the Working Group, it is essential that

prosecutors act in strict compliance with the principle of lawfulness under the rule of law.

90.

In assessing the independence and impartiality of prosecutors, it is important to

examine both the structural independence of prosecutors’ offices and their operational

independence and impartiality, or functional independence, given that a “lack of autonomy

can erode the credibility of the authority responsible for investigating crimes objectively

and undermine confidence in its ability to do so”.26 In this context, States have a duty to

ensure that prosecutors can carry out their functions without undue interference.27

91.

Furthermore, the Working Group would like to recall that military courts – and

consequently the investigative activities and criminal prosecutions undertaken by officials

who report to a military body – affect the enjoyment of human rights such as the right to

procedural equality and a fair trial. Furthermore, the Working Group recognizes that one of

the most valuable attributes of civilian judges and prosecutors is their independence, which

military judges and prosecutors generally lack as they are subject to their superiors’ orders

and therefore cannot be considered a “competent, independent and impartial tribunal” in the

terms of article 14 (1) of the Covenant. The obedience that the military judicial authorities

owe their superiors also entails a violation of the right to personal security enshrined in

article 9 of the Covenant. The actions of investigative bodies composed of military

personnel who are subject to a chain of command and the orders of superiors, and who

produce evidence, sometimes unlawfully, that is introduced into criminal proceedings by a

prosecutor’s office that has a duty to act independently, do not satisfy the standards relating

to the right to a fair trial set out in the aforementioned articles, particularly the right to be

prosecuted and tried by independent and impartial bodies.

17 A/HRC/20/19, para. 20.

18 A/CONF.144/28/Rev.1, second and fifth preambular paragraphs.

19 Articles 10 and 11.

20 Article 14.

21 Article 8.

22 A/CONF.144/28/Rev.1, guideline 12.

23 Ibid., guideline 13 (a) and (b).

24 A/HRC/20/19, para. 93.

25 Ibid., guideline 11.

26 A/HRC/17/30/Add.3, para. 16. See also para. 87.

27 A/HRC/20/19, para. 26.

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92.

The Working Group would like to reiterate that the Guidelines on the Role of

Prosecutors stipulate that, when prosecutors come into possession of evidence against

suspects that they know or believe on reasonable grounds was obtained through recourse to

unlawful methods, which constitute a grave violation of the suspect’s human rights,

especially involving torture or cruel, inhuman or degrading treatment or punishment, or

other abuses of human rights, they shall refuse to use such evidence against anyone other

than those who used such methods, or inform the Court accordingly, and shall take all

necessary steps to ensure that those responsible for using such methods are brought to

justice.28 The Working Group also notes that, during the preliminary hearing, the detainees

in this case claimed to have been tortured in the presence of the prosecutors. However, the

Working Group has not been shown any evidence that the authorities suspended the

criminal proceedings in order to carry out a thorough and independent investigation of the

circumstances surrounding these allegations.

93.

The fact that Mr. Hernández Da Costa is being tried by courts where proceedings are

based on the work of a criminal investigation body that does not meet or operate in

accordance with the required standards of independence and impartiality is a violation of

his rights under articles 9 and 14 (1) of the Covenant.

Adequate time and facilities to prepare a defence

94.

The Working Group recalls that it is the right of all persons charged with a criminal

offence to be informed promptly and in detail in a language which they understand of the

nature and cause of the charges against them, and to have adequate time and facilities for

the preparation of their defence and to communicate with counsel of their own choosing.29

The Working Group wishes to stress that the accused person has the right to be assisted and

defended by a lawyer of his own choosing.30

95.

Like the Human Rights Committee, the Working Group considers that a person’s

right to be informed promptly of the nature and cause of the charges against him or her may

be satisfied orally (i.e. verbally), provided that the charges are later confirmed in a written

document that specifies both the applicable law and the facts on which they are based.31

96.

As regards the right to a defence lawyer and adequate time and facilities to prepare a

defence, the Working Group is of the view that accused persons must be given appropriate

time and facilities. This implies that they should have prompt access to lawyers, be able to

communicate privately with them in conditions that guarantee the confidentiality of their

communications, 32 have adequate time to prepare their defence 33 and be provided with

access to the file containing all documents, evidence and other materials that the

prosecution intends to submit to the court.34

97.

The Working Group also considers that:

The factual and legal basis for the detention shall be disclosed to the detainee and/or

his or her representative without delay so as to provide adequate time to prepare a

challenge. Disclosure includes a copy of the detention order, access to and a copy of

the case file, in addition to the disclosure of any material in the possession of the

authorities or to which they may gain access relating to the reasons for the

deprivation of liberty.35

98.

In this regard, the Working Group has been persuaded that Mr. Hernández Da Costa

was not informed of the reasons for his detention at the time of his arrest and was not

informed immediately afterwards of the legal and factual grounds for the charges against

him. The Group has also been persuaded that Mr. Hernández Da Costa was held

incommunicado, without being allowed to see his family or lawyer, for 40 days.

28 Principle 16.

29 Article 14 (3) (a) and (b) of the Covenant.

30 Article 14 (3) (d) of the Covenant.

31 General comment No. 32, para. 31.

32 Ibid., para. 34.

33 Ibid., para. 32.

34 Ibid., para. 33.

35 Guideline 5. Right to be informed. A/HRC/30/37, para. 56.

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99.

The Working Group has received information from the parties to the effect that Mr.

Hernández Da Costa was involved in the drone attack on the President that took place on 4

August 2018 at an event he attended that had been organized to commemorate the

anniversary of the National Guard’s establishment. However, the Government did not

submit information on any facts that might substantiate the allegation that Mr. Hernández

Da Costa participated in this attack and did not submit any evidence that might prove his

responsibility. The Working Group has also been persuaded that, during the raid, the

officers confiscated a weapon registered in his name and property belonging to him that had

some economic value. Furthermore, in the days following his arrest, three more raids were

carried out during which evidence was planted against him. The Working Group has

previously stated that evidence obtained unlawfully may not serve as a basis for detention.

100.

For the Working Group, all of the above contravenes Mr. Hernández Da Costa’s

right to have adequate time and facilities to prepare his defence in accordance with article

14 of the Covenant.

Right to be tried without undue delay

101.

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

tried without undue delay. 36 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 and that delays for any other reasons are incompatible

with the Covenant and compromise the impartiality of a trial.37 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.38

102.

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.39 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.40

103.

In the present case, Mr. Hernández Da Costa has been investigated and prosecuted

by bodies that did not meet the required standards of impartiality and independence and are

therefore not competent to hear the case. Furthermore, the Working Group has received

convincing information to the effect that Mr. Hernández Da Costa’s hearings were

repeatedly adjourned for unknown reasons, which deliberately prolonged the trial by 11

months, only for the judge to then admit all the charges formulated by the Public

Prosecution Service, with the result that Mr. Hernández Da Costa remained in detention

without any date being set for the trial.

104.

Consequently, the Working Group considers that the detention was arbitrary as he

was not brought to trial without undue delay, as required under articles 9, 10 and 11 of the

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

105.

In the light of the foregoing, the Working Group considers that the non-observance

of the international standards relating to the right to a fair trial established in articles 9, 10

and 11 of the Universal Declaration of Human Rights and articles 9 and 14 of the Covenant

is of such gravity as to give Mr. Hernández Da Costa’s deprivation of liberty an arbitrary

character under category III.

106.

In the light of the information received about Mr. Hernández Da Costa’s enforced

disappearance, the conditions of his detention and his health-care requirements, and the

allegations of torture and cruel, inhuman and degrading treatment, the Working Group, in

accordance with paragraph 33 (a) of its methods of work, refers the present case to the

Working Group on Enforced or Involuntary Disappearances, the Special Rapporteur on

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

36 Article 14 (3) (c) of the Covenant.

37 General comment No. 32, para. 27.

38 Ibid.

39 Opinion No. 78/2018, paras. 75–76.

40 General comment No. 35, paras. 34 and 42.

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Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of

physical and mental health and the Special Rapporteur on the independence of judges and

lawyers.

107.

In the light of the recurrent pattern of arbitrary detention identified by this

international human rights mechanism in recent years, the Government of the Bolivarian

Republic of Venezuela is urged to consider inviting the Working Group to make an official

country visit. Such visits are an opportunity for the Working Group to engage in direct

constructive dialogue with the 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.

Disposition

108.

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

The deprivation of liberty of Mr. Héctor Armando Hernández Da Costa, being in

contravention of articles 9, 10 and 11 of the Universal Declaration of Human Rights

and articles 9 (3) and 14 (1) of the International Covenant on Civil and Political

Rights, is arbitrary and falls under categories I and III.

109.

The Working Group requests the Government of the Bolivarian Republic of

Venezuela to take the steps necessary to remedy the situation of Mr. Hernández Da Costa

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.

110.

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

case, the appropriate remedy would be to release Mr. Hernández Da Costa immediately and

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

international law.

111.

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.

Hernández Da Costa.

112.

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

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

Hernández Da Costa and to take appropriate measures against those responsible for the

violation of his rights.

113.

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

refers the present case to the Working Group on Enforced or Involuntary Disappearances,

the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment, the Special Rapporteur on the right to health and the Special Rapporteur on the

independence of judges and lawyers.

114.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

115.

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. Hernández Da Costa has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr.

Hernández Da Costa;

(c)

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

Hernández Da Costa’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;

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(e)

Whether any other action has been taken to implement the present opinion.

116.

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.

117.

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

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.

118.

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.41

[Adopted on 1 May 2020]

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