A/HRC/WGAD/2020/73

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-ninth session, 23–27 November 2020

Opinion No. 73/2020 concerning Juan Antonio Planchart Márquez

(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 1 April 2020, the Working

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

communication concerning Juan Antonio Planchart Márquez. The Government has not

replied to the communication. The State is a party to the International Covenant on Civil and

Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

United Nations

A/HRC/WGAD/2020/73

General Assembly

Distr.: General

24 February 2021

English

Original: Spanish

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Submissions

Communication from the source

4.

Juan Antonio Planchart Márquez has Venezuelan and Italian nationality and lives in

Caracas. He is a lawyer and the legal manager of Petrolera RN LTD.

(a)

Arrest and detention

5.

According to the information received, Mr. Planchart was arrested by officers of the

Bolivarian National Intelligence Service on 23 March 2019 on Carretera Vieja Baruta,

Terrazas del Club Hípico, opposite the Quinta Grupo de Rescate Venezuela (headquarters of

the Venezuela Rescue Group) in Caracas. The officers did not produce a warrant or proof of

any other decision taken by a State authority and did not inform Mr. Planchart of the reasons

for his arrest.

6.

The source also reports that, hours before the arrest, the Sectoral Vice-President for

Communication, Culture and Tourism had publicly accused Mr. Planchart of diverting the

country’s resources towards the political opposition. He did so on the national television

channel, Venezolana de Televisión, while holding up a poster showing Mr. Planchart’s

photograph and personal details. He also said no fewer than three times that they were

“searching for” Mr. Planchart so that he might provide an explanation.

7.

The source notes that the Sectoral Vice-President for Communication, Culture and

Tourism is not a judge and that his public statements do not constitute an arrest warrant,

although they are believed to have been taken as an instruction. In fact, the only authority

competent to order that a person be deprived of his or her liberty is a due process judge, on

receipt of a request from the Public Prosecution Service in accordance with articles 67 and

236 of the Code of Criminal Procedure. The order must be issued in writing (art. 157) in the

form of a duly substantiated decision stating, inter alia, the acts attributed to the person

concerned and the reasons justifying the arrest (art. 240).

(b)

Pretrial detention, indictment and trial

8.

According to the information received, an arrest warrant, allegedly dated 22 March

2019, appeared in the case file after Mr. Planchart’s arrest. It had been issued by the due

process judge of the Court of First Instance, who has national jurisdiction to hear cases

involving terrorism-related offences and offences associated with corruption and organized

crime.

9.

The source states that the arrest warrant was issued by the aforementioned judge after

the arrest, following a joint request allegedly issued by acting prosecutor No. 83 and acting

prosecutor No. 67, both of whom have national jurisdiction. In the request, they stated that

there was substantiated evidence indicating that Mr. Planchart had committed the offences of

treason, conspiracy, money laundering, association with terrorists and financing of terrorism.

10.

The source notes that the Sectoral Vice-President for Communication, Culture and

Tourism had no evidence on which to base the aforementioned statement other than a number

of alleged screenshots, displayed in a way that made them difficult to read, and text messages

exchanged between members of the political opposition in which Mr. Planchart was

identified as the intermediary set to mobilize funds withheld from the State in overseas

accounts. The source asserts that this situation amounts to undue interference by the executive

branch in the functions of the judiciary, indicating that the judge hearing the case did not act

independently.

11.

The arrest warrant stated that Mr. Planchart, together with other citizens linked to the

political opposition, had attempted “to execute a plan to destabilize the country that was

conceived and funded by Venezuelan agents living overseas along with foreign agents who,

being opposed to the policies implemented by the National Executive, are seeking to violently

overthrow the Government”. It also stated that Mr. Planchart had undermined “the security

and stability of the nation and its inhabitants by carrying out acts whose repercussions would

have a far-reaching impact on the life of the nation and its normal development”.

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12.

Furthermore, Mr. Planchart was alleged to have “worked to ensure the realization of

plans and actions intended to cause political instability and thus to directly undermine the

independence and overall security of the nation and its constitutional order that were

formulated in meetings and conversations between Mr. Planchart and a prominent member

of the political opposition”. The warrant also states that “together with a prominent member

of the political opposition, Mr. Planchart used instant messaging platforms to plan the means

to transfer into the financial and economic system funds provided by citizens living overseas

to finance activities intended to destabilize the country’s constitutional order. The origin of

these funds is unknown.”

13.

In addition, the warrant states that Mr. Planchart received “a percentage of the profits

derived from the various unlawful activities” and that “the funds were apparently to be used

to finance activities intended to incite acts of violence against the constitutional order,

executing conspiratorial plans with a subversive intent in an attempt to destabilize the country

and destroy the democratic system that governs the State of Venezuela.

14.

The Public Prosecution Service argued, solely on the basis of the potential penalty,

that Mr. Planchart was a flight risk and might attempt to obstruct the investigation. According

to the source, the due process judge declared the Public Prosecution Service’s request

admissible, adding only, and without justification, that Mr. Planchart might attempt to

influence witnesses. Consequently, a warrant for his arrest is alleged to have been issued on

22 March 2019. The evidence for these claims consists of two criminal investigation reports

drawn up by officials of the Bolivarian National Intelligence Service, one allegedly dated 15

March 2019 and the other 22 March 2019, according to the case file.

15.

The source states that, following the arraignment hearing held on 27 March 2019, Mr.

Planchart’s defence lawyers and family members were unable to see or communicate with

him for 46 days, as he was being held totally incommunicado. On 25 March 2019, in view of

the lack of official information on Mr. Planchart’s whereabouts, his family filed a complaint

for the offence of enforced disappearance of persons. The Public Prosecution Service has not

initiated an investigation into these events.

16.

The source states that, on 25 March 2019, the Sectoral Vice-President for

Communication, Culture and Tourism appeared on the Telesur channel to make further

public statements. At this point in time, Mr. Planchart had been arrested but had not been

brought before a court, in violation of article 44.1 of the Constitution, and no one had been

informed of his whereabouts. On this occasion, the Sectoral Vice-President accused Mr.

Planchart of negotiating with overseas financial institutions with which the Venezuelan State

had deposited funds with a view to making these funds available to the President of the

National Assembly, whose ultimate goal was to divert the funds for his personal benefit and

use them to finance paramilitary groups.

17.

The source asserts that, while this last statement was being made, images of Mr.

Planchart’s face together with the word “captured” were shown on screen, along with photos

purported to be of his office and others in which he appears with the President of the National

Assembly. Mobile telephone screenshots, photographs of Mr. Planchart and organizational

charts were displayed on posters bearing titles such as “financial controller of the terrorist

high command” and “instigator of another plunder of Venezuela”. Lastly, the Sectoral Vice-

President for Communication, Culture and Tourism, alluding to Mr. Planchart, said “you’re

going to be brought down; you’ll remain a prisoner, just as you are now”. The source

emphasizes that, at the time these statements were made, a decision on Mr. Planchart’s

detention had not yet been reached. Furthermore, neither Mr. Planchart’s family members

nor his lawyers had been informed of the reasons for his arrest, his state of health or his

whereabouts.

18.

The source reports that, on 27 March 2019, after being missing for 72 hours, Mr.

Planchart was brought before the due process judge, who informed him of the charges against

him. These were consistent with those mentioned by the Sectoral Vice-President for

Communication, Culture and Tourism. In accordance with the instructions issued publicly by

the Sectoral Vice-President, the judge agreed Mr. Planchart’s detention, ordering that he be

imprisoned in the facilities of the Bolivarian National Intelligence Service, where he had been

held since 27 March 2019.

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19.

According to the source, the preliminary hearing was held on 17 June 2019, the trial

began on 20 November 2019, and the last court session took place on 18 December 2019.

This last session was interrupted after the judge was removed from office.

20.

The source reports that the court hearing the case against Mr. Planchart has no

presiding judge since the competent judicial commission has not appointed one. As a result,

the judicial proceedings are at a standstill and the trial that had been initiated must therefore

be restarted.

21.

From December 2019 until February 2020, Mr. Planchart was intermittently isolated

from his family and lawyers. The authorities provided no explanation as to why this measure

was taken.

22.

On 20 March 2020, in view of the fact that the proceedings had been paused, without

a judge and without resources, since December 2019, Mr. Planchart’s defence counsel

attempted to file a petition to have the precautionary pretrial detention order lifted on

humanitarian grounds with the head judge of the Criminal Court Circuit of the Caracas

Metropolitan Area so that Mr. Planchart could be provided with the necessary medical

treatment and appropriate hygiene measures to protect him against coronavirus disease

(COVID-19) infection could be taken. However, an official at the Document Reception and

Distribution Unit of the Criminal Court Circuit informed him that a judge had been appointed

and that the court would be “authorized”, without providing any further explanations.

23.

In the meantime, the source reports, Mr. Planchart’s health continues to deteriorate.

A tumour detected in his neck is still growing and Mr. Planchart continues to report

discomfort, difficulty swallowing and what he describes as occasional “tingling” sensations.

24.

Although numerous written requests for Mr. Planchart’s transfer to a medical facility

have been submitted, he has never received any treatment to remove the tumour in his neck,

contrary to the instructions of the only doctor who has been able to examine him.

25.

The source maintains that the arrest warrant and the request made by the Public

Prosecution Service have no legal basis. Article 236 of the Code of Criminal Procedure

stipulates that there must be substantiated evidence that an offence has been committed in

order for an arrest warrant to be issued. In the present case, the only evidence put forward by

the Public Prosecution Service consists of two criminal investigation reports, one dated 15

March 2019 and the other dated 22 March 2019. The source states that these reports, which

merely set out the opinions of the officials of the Bolivarian National Intelligence Service,

are loaded with value judgments and do not respect minimum safeguards for the collection

and handling of evidence. Therefore, they cannot give rise to even the suspicion that a

punishable act has been committed and, moreover, make it impossible for the defence to

conduct any checks or mount any challenges.

26.

The source also argues that, pursuant to article 236 of the Code of Criminal Procedure,

a warrant for a person’s arrest may not be issued unless it can be demonstrated in advance

that he or she poses a flight risk or might obstruct the investigation. On this point, the source

affirms that the Public Prosecution Service simply asserted that the penalty to be handed

down was a severe one and that Mr. Planchart “might” destroy or tamper with evidence. The

source maintains, however, that these are mere assertions that are not supported by evidence.

No other conclusion is possible, the source argues, since the unlawful and irrelevant criminal

investigation reports (which are the only evidence offered) contain nothing to indicate that

Mr. Planchart would attempt to flee the country or obstruct the investigation and cite no

evidence that he has committed a punishable offence.

27.

The source also states that there is no factual or legal basis for Mr. Planchart’s

detention and that evidence was falsified in the investigation leading to his arrest. According

to the source, Mr. Planchart was arrested and subsequently detained as part of a campaign of

persecution against a member of the political opposition. This campaign was the basis for

fabricating what would become the grounds for ordering Mr. Planchart’s arrest.

28.

The source notes that the search of social media posts that provided the evidence for

arresting the aforementioned member of the opposition and subsequently incriminating Mr.

Planchart was carried out at least 24 hours after his arrest. This is evidenced by screenshots

of Internet searches that show posts dating from 21 March 2019 about the raid on the member

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of the opposition’s home and his subsequent arrest, where it is clearly indicated that the posts

were published 24 hours before the search was carried out. Accordingly, the source maintains

that it is clear from the content itself that it had not been examined before the arrest was

made.

29.

Moreover, the source affirms that the criminal investigation report, which had

allegedly been drawn up on 15 March 2019, was also not put together until after the arrest of

the opposition member and the raid on his home. In any event, even if the screenshots of

communications were authentic, they do not constitute evidence of the offences with which

Mr. Planchart is accused. In the first conversation, two people are discussing a person called

“Juan Planchart”. Even if this is a reference to Mr. Planchart, the conversation does not allude

to any criminal conduct on his part. Furthermore, as he does not take part in the conversation,

he cannot be held responsible for it. To conclude otherwise would mean prosecuting Mr.

Planchart for the acts of third parties, which is contrary to the Constitution, according to

which no one may be punished or prosecuted for the acts of others (art. 44.3). In the second

conversation, the participants are arranging a meeting between the aforementioned member

of the political opposition and Mr. Planchart. As the source states, this conduct is not in itself

an offence. On the contrary, the Constitution recognizes that all persons have the right to

meet (art. 53).

30.

The source also notes the contradictions surrounding the time at which the criminal

investigation report dated 22 March 2019 was drawn up, which could be evidence either of

interference in its drafting or falsification of its content.

31.

According to the source, there is also no basis for Mr. Planchart’s detention. The

source maintains that, although the due process judge found that Mr. Planchart had

committed the offences of conspiracy, money laundering, association with terrorists and

financing of terrorism, it is clear that the judge failed to provide any evidence that might

prove Mr. Planchart’s responsibility. The judge’s decision was based solely on mobile phone

screenshots, which are unreliable because: (a) it cannot be proven that they are authentic as

there has been no attempt to verify them; and (b) they are unlawful because they were

obtained without judicial authorization. The source notes that, in Venezuelan law, messages

may be intercepted only with a judge’s authorization, in the absence of which they are null

and void as evidence.

32.

In any case, the source states that the Public Prosecution Service was required to

provide evidence, and the due process judge to issue a ruling, that it was reasonable to expect

Mr. Planchart to attempt to flee the country or obstruct the proceedings if he was not detained.

However, the due process judge failed to issue a ruling on the matter, instead taking the view

that, since Mr. Planchart was facing a custodial sentence of more than 10 years, it could be

presumed that he would flee the country. However, the source maintains that this

presumption is insufficient grounds for detention. Pursuant to article 237 of the Code of

Criminal Procedure, the due process judge should have considered other aspects of the case,

such as whether it would be easy for Mr. Planchart to flee the country and his conduct during

the proceedings to date, but these factors were not taken into account.

33.

The source also affirms that, assuming some of the assertions underpinning the due

process judge’s decision are true, Mr. Planchart is being prosecuted for exercising his right

to take part in the conduct of public affairs in his country, in violation of article 21 of the

Universal Declaration of Human Rights and article 25 of the Covenant.

34.

The source explains that Mr. Planchart is being prosecuted for allegedly having

provided information that would later be used by the United States of America to impose

financial restrictions; for placing shares in Petróleos de Venezuela, S.A. at the disposal of the

interim Government; and for submitting comments on a draft bill on hydrocarbons to the

national leader of the political party Voluntad Popular. The source notes that none of these

actions constitutes an offence in the Bolivarian Republic of Venezuela. In acting as he did,

Mr. Planchart was exercising his right to participate in what he considers, with legal

justification, to be the interim Government of his country.

35.

According to the source, this is demonstrated by the fact that the offences attributed

to Mr. Planchart are unrelated to the events described. The offence of money laundering

involves receiving or concealing funds derived from unlawful activities and the offence of

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financing terrorism involves providing funds for the commission of terrorist acts; neither

offence involves acts such as providing information in connection with the imposition of

financial restrictions, participating in the transfer of shares in a foreign company or

commenting on a draft law. The source further notes that the above-mentioned acts do not

entail – nor have been shown or even alleged to entail – attempts to destroy the country’s

republican form of government, which is what the offence of conspiracy entails, still less are

they connected with the offence of belonging to an organized criminal group.

36.

Thus, the source concludes that, assuming some of the assertions are true, Mr.

Planchart’s deprivation of liberty is a consequence of his allegedly having exercised his right

to take part in the conduct of public affairs in his country by providing legal assistance and

information.

37.

The source also reports that Mr. Planchart was deprived of his liberty because he is a

relative of the President of the National Assembly and the member of the political opposition.

Furthermore, the Sectoral Vice-President for Communication, Culture and Tourism alleges

that Mr. Planchart has family ties with persons who hold positions in “electricity companies

in the Dominican Republic” and other persons “mentioned in the Panama Papers”. The source

maintains that these reasons amount to discrimination against Mr. Planchart, in violation of

article 7 of the Universal Declaration of Human Rights and article 26 of the Covenant. The

source notes that this discrimination, being based solely on the fact that Mr. Planchart is a

relative of political opponents of the Government, is unjustified.

38.

The source also affirms that the international regulations relating to the right to a fair

and impartial trial, specifically articles 9 and 10 of the Universal Declaration of Human

Rights and articles 9 and 14 of the Covenant, have been partially or wholly violated. Several

violations of the right to a fair and impartial trial have been committed:

(a)

Mr. Planchart was never informed of the reasons for his arrest, in violation of

article 241 of the Code of Criminal Procedure. It was only when he was brought before the

due process judge, 72 hours after his arrest, that he learned of the charges against him. He

was also prevented from seeing members of his family, who were not informed of his

detention;

(b)

Mr. Planchart was questioned without his lawyers being present, despite the

fact that article 132 of the Code of Criminal Procedure stipulates that all statements must be

made in the presence of a lawyer, failing which they are null and void;

(c)

Mr. Planchart’s lawyers were denied information about the reasons for his

arrest, were not given access to the contents of the case file and were not even allowed to

make copies of the documents it contained so that they were able to prepare a defence;

(d)

The due process judge does not preside over an ordinary court, but rather a

special court established for the purpose of removing from the jurisdiction of the ordinary

courts persons who are considered responsible for “any act whose form, type or manifestation

gives rise to, promotes, establishes or permits terrorism of any form, especially those forms

related to political and social conflicts”. Such a measure is prohibited under article 49.4 of

the Constitution and article 7 of the Code of Criminal Procedure. A similar prohibition is

found in article 14 of the Covenant;

(e)

The Sectoral Vice-President for Communication, Culture and Tourism

publicly disclosed information about the investigation into Mr. Planchart’s activities before

Mr. Planchart and his lawyers had been duly informed. He did so despite the fact that third

parties, including the Vice-President (Code of Criminal Procedure, art. 286), are not

authorized to obtain access to information on investigations. Also, such disclosure

compromises Mr. Planchart’s reputation;

(f)

Hours before Mr. Planchart was arrested, the Sectoral Vice-President for

Communication, Culture and Tourism publicly revealed that a search for Mr. Planchart was

under way. Once again, but this time before Mr. Planchart was placed in detention, he

publicly stated that Mr. Planchart would remain in prison, where he was. Both statements,

being made by someone who is not a judge but subsequently acted upon by the due process

judge and the Bolivarian National Intelligence Service nonetheless, seriously compromised

the impartiality of the proceedings to which Mr. Planchart is being subjected.

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39.

The source concludes that all these events make it clear that Mr. Planchart’s right to

a fair and impartial trial, subject to the guarantees provided for in the Universal Declaration

of Human Rights and the Covenant, has been violated.

Response from the Government

40.

On 1 April 2020, the Working Group transmitted the allegations from the source to

the Government, requesting that it submit a response before 1 June 2020. The Working Group

regrets that the Government did not respond to this communication.

Discussion

41.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

42.

In determining whether Mr. Planchart’s deprivation of liberty is arbitrary, the

Working Group has regard to the principles established in its jurisprudence to deal 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.1 Mere assertions that lawful

procedures have been followed will not be sufficient to rebut the source’s allegations.2 In the

present case, the Government has chosen not to challenge the allegations made by the source.

Category I

43.

The source alleges that Mr. Planchart’s detention is arbitrary since it lacks any legal

basis, as defined by the Working Group under category I.3 Mr. Planchart was arrested by

officers of the Bolivarian National Intelligence Service on 23 March 2019 on Carretera Vieja

Baruta, Terrazas del Club Hípico, opposite the Quinta Grupo de Rescate Venezuela in

Caracas. The officers did not show a warrant or proof of any other decision taken by a State

authority. When he was detained, Mr. Planchart was not informed of the reasons for his arrest,

in violation of his right to challenge the lawfulness of his detention before a court, a right that

is protected under article 9 of the Covenant as well as being established as a peremptory norm

of international law (jus cogens) that is applicable to all forms of arbitrary deprivation of

liberty.4

44.

The Working Group considers that the source has established a credible case that the

authorities did not produce a warrant at the time of Mr. Planchart’s arrest and did not inform

him of the reasons for his arrest. These claims have not been refuted by the Government.

Furthermore, the Working Group notes that Mr. Planchart was not arrested in flagrante

delicto in the present case and that there are therefore no grounds on which it might

reasonably be argued that the authorities were responding to an offence of this kind,5 which

would have enabled them to justify his arrest without a warrant. It is not sufficient for there

to be a law providing a basis for detention; it is also necessary that the authorities invoke this

legal basis, and apply it by citing it in the corresponding warrant.6 In the present case, the

officers who carried out the arrest did not produce a warrant at the time of the arrest, in

violation of articles 3 and 9 of the Universal Declaration of Human Rights7 and article 9 (1)

of the Covenant. Consequently, the authorities were unable to demonstrate that there was a

legal basis for Mr. Planchart’s arrest and their actions fall within category I.

1 See A/HRC/19/57, para. 68; and opinion No. 74/2017.

2 See A/HRC/19/57, para. 68.

3 Opinions No. 1/2017 and No. 6/2017.

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

Deprived of Their Liberty to Bring Proceedings Before a Court, guideline 1 (A/HRC/30/37), para. 47

(a).

5 Opinion No. 9/2018, para. 38.

6 Opinions No. 46/2019, para. 51; No. 46/2018, para. 48; No. 36/2018, para. 40; and No. 10/2018, para.

45.

7 Opinion No. 45/2019, para. 50 (an arrest warrant must be presented at the time of arrest; it is not

sufficient for a warrant to be presented after the arrest). See also opinion No. 71/2019, para. 70.

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45.

Moreover, Mr. Planchart was not informed of the reasons for his arrest either at the

time it took place or immediately thereafter. By failing to comply with one of the essential

requirements for lawful detention, the authorities have violated not only article 9 of the

Universal Declaration of Human Rights and article 9 (2) of the Covenant but also principle

10 of the Body of Principles for the Protection of All Persons under Any Form of Detention

or Imprisonment, rendering the arrest and detention arbitrary and without legal basis.8

46.

The source also states that, on 27 March 2019, after Mr. Planchart had been missing

for 72 hours, he was brought before the due process judge, who informed him of the offences

with which he was charged. Furthermore, for 46 days following the arraignment hearing held

on 27 March 2019, Mr. Planchart’s defence lawyers and family members were unable to see

or communicate with him as he was being held totally incommunicado. On 25 March 2019,

in view of the lack of official information about Mr. Planchart’s whereabouts, his family filed

a complaint for the offence of enforced disappearance of persons. The Public Prosecution

Service has not initiated an investigation into these events. The Working Group notes that

Mr. Planchart’s incommunicado detention also appears to amount to a prima facie case of

enforced disappearance, which has been universally condemned as a denial of the purposes

of the Charter of the United Nations and 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. Mr. Planchart was

deprived of his liberty against his will by government officials who refused to disclose his

fate and whereabouts.9 Such enforced disappearances contravene articles 9 and 14 of the

Covenant and constitute a particularly aggravated form of arbitrary detention.10

47.

The source adds that the court hearing the case against Mr. Planchart has no presiding

judge since the competent judicial commission has not appointed one. As a result, the legal

proceedings are at a standstill and the trial that had been initiated must therefore be restarted.

The source adds that, from December 2019 until February 2020, Mr. Planchart was

intermittently isolated from his family and lawyers without explanation. The source states

that Mr. Planchart, who had been charged with conspiracy, is now facing charges of money

laundering, association with terrorists and financing of terrorism, without any evidence

having been put forward to prove his responsibility.

48.

As the Working Group has noted in its jurisprudence, a person who is arrested and

detained must be brought before a judge within 48 hours of his or her arrest and any further

delay must be absolutely exceptional and justified by the circumstances.11 It is not sufficient

to bring detained persons before a prosecution body as the detention must be overseen by a

judicial authority with the necessary independence to consider the lawfulness of the

detention.12 In the absence of an explanation from the Government, the Working Group

concludes that Mr. Planchart was deprived of the right to be brought promptly before a court

to challenge the lawfulness of his detention within the 48-hour time limit established by

international standards, in violation of article 9 of the Universal Declaration of Human

Rights, article 9 (3) of the Covenant and principles 11 and 37 of the Body of Principles.

49.

Furthermore, the Working Group notes that Mr. Planchart is being prevented from

exercising his right to initiate the required legal proceedings before a court or a judge, which

would enable the judge to decide without delay on the lawfulness of his detention, as provided

for in articles 3 and 9 of the Universal Declaration of Human Rights, article 9 (4) of the

Covenant and principle 32 of the Body of Principles. Also, during the first few months of his

detention, Mr. Planchart did not have access to a lawyer, which is an essential safeguard that

8 Opinions No. 37/2020, para. 52; No. 33/2020, para. 54; No. 31/2020, para. 41; No. 82/2018, para. 29;

No. 68/2018, para. 39; No. 30/2018, para. 39; No. 26/2018, para. 54; No. 10/2018, para. 46; and No.

3/2018, para. 43 (the presentation of an arrest warrant is inherent to the procedure under articles 3 and

9 of the Universal Declaration of Human Rights).

9 A/HRC/16/48/Add.3, para. 21.

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

comment No. 35 (2014), para. 17, and Opinion No. 76/2017.

11 Opinions No. 31/2020, para. 45; No. 76/2019, para. 38; No. 56/2019, para. 80; No. 36/2019, para. 36;

No. 26/2019, para. 89; and No. 20/2019, para. 66.

12 Opinions No. 41/2020, para. 60; No. 33/2020, para. 75; No. 32/2020, para. 44; No. 45/2019, para. 52;

No. 44/2019, para. 53; No. 46/2018, para. 50; No. 35/2018, para. 37; and No. 75/2017, para. 48.

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may have helped him to challenge the legal basis of his detention.13 The Working Group also

notes that, according to the information provided by the source, Mr. Planchart was initially

denied access to counsel and was therefore prevented from having legal representation from

the outset. He was then held incommunicado for more than 46 days, during which time he

was denied access to his lawyers and family members.

50.

The Working Group reiterates that the right to challenge the lawfulness of detention

before a court is a self-standing human right, the absence of which constitutes a human rights

violation.14 Judicial oversight of the deprivation of liberty is also a fundamental safeguard of

personal liberty, essential to ensuring that detention has a legal basis. 15 Given that Mr.

Planchart has effectively been prevented from challenging his detention, his right to an

effective remedy under article 8 of the Universal Declaration of Human Rights and article 2

(3) of the Covenant has also been violated. As his whereabouts are unknown, his detention

is of itself arbitrary, and has placed him outside the protection of the law, in flagrant violation

of articles 6, 7 and 8 of the Universal Declaration of Human Rights and article 16 of the

Covenant.

51.

In addition, the source affirms that there is no information to suggest that Mr.

Planchart’s detention for the charges brought against him has been subject to judicial review.

No judicial review appears to have been conducted in the present case as Mr. Planchart has

been questioned and remains in the facilities of the Bolivarian National Intelligence Service.

Instead of being placed under the jurisdiction of the appropriate court, he has been placed

under the jurisdiction of, and brought before, a special court established, according to the

source, for the purpose of removing from the jurisdiction of the ordinary courts persons who

are considered responsible for “any act whose form, type or manifestation gives rise to,

promotes, establishes or permits terrorism of any form, especially those forms related to

political and social conflicts”. This reinforces the Working Group’s conviction that Mr.

Planchart’s continued detention has no legal basis.

52.

The source reports that Mr. Planchart’s state of health has suffered and that he requires

specialized care and even surgery. According to the source, a request for treatment on

humanitarian grounds was submitted to the head judge of the Criminal Court Circuit of the

Caracas Metropolitan Area in an attempt to ensure that Mr. Planchart received the necessary

medical treatment and that the hygiene measures necessary to protect him against COVID-

19 infection were taken. The application was ignored, in violation of rules 27.1 and 27.2 of

the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson

Mandela Rules). All these circumstances lead the Working Group to conclude that the

detention was arbitrary under category I.

Category III

53.

The right to due process and to a fair and impartial trial is recognized by the Human

Rights Committee, which authoritatively interprets the meaning and application of article 14

of the Covenant and considers that the right to a “fair and public hearing by a competent,

independent and impartial tribunal”16 is primarily linked to the provisions of articles 14 and

15 of the Covenant. This right applies to all legal proceedings linked to the parallel guarantees

of the right to equality before the courts and tribunals, the right to a public hearing and the

right to equality of arms, all of which States parties must respect, irrespective of their legal

traditions and national laws.

54.

The Working Group notes that, contrary to the requirement of article 9 (3) of the

Covenant, which stipulates that persons awaiting trial should be detained in custody only on

an exceptional basis and not as a general rule, Mr. Planchart was automatically placed in

pretrial detention. The Working Group emphasizes that, in its Opinion No. 1/2018, it

examined this matter and concluded that mandatory pretrial detention violates article 9 (3) of

the Covenant, which stipulates that detention pending trial should be the exception rather

than the rule and must be based on an individualized determination that it is reasonable and

13 A/HRC/30/37, principle 9 and guideline 8; and opinion No. 40/2020, para. 29.

14 A/HRC/30/37, para. 2.

15 Ibid., para. 3.

16 General comment No. 32, para. 15, referring to article 14 (1) of the Covenant.

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necessary.17 The Working Group considers that the information submitted by the source

discloses violations of the right to a fair trial, which includes respect for the court orders

issued as part of the proceedings under the principles of international human rights law.

55.

The Working Group notes that, according to the source, Mr. Planchart was placed in

detention hours after the Sectoral Vice-President for Communication, Culture and Tourism

had publicly accused Mr. Planchart of diverting the resources of the Republic in favour of

the political opposition. The source states that this statement was made on the national

television channel Venezolana de Televisión while the Sectoral Vice-President for

Communication, Culture and Tourism was holding up a poster showing Mr. Planchart’s

photograph and personal details. According to the source, the Sectoral Vice-President said

no fewer than three times that they were “searching for” Mr. Planchart so that he might

provide an explanation.

56.

The Working Group affirms that these circumstances amount to a violation of article

10 of the Universal Declaration of Human Rights, which clearly states that “everyone is

entitled in full equality to a fair and public hearing by an independent and impartial tribunal,

in the determination of his rights and obligations and of any criminal charge against him”.

Moreover, the Human Rights Committee notes that public officials should abstain from

making public statements affirming the guilt of the accused. 18 Furthermore, these

circumstances might be said to disclose a clear violation of the right to be presumed innocent

under article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the

Covenant. The Government has not responded to the Working Group’s communication under

its regular procedure and therefore has not provided any information to challenge these

allegations.

57.

Since the last court session on 18 December 2019, Mr. Planchart has been unable to

see or communicate with his lawyers as he has been held completely incommunicado. The

source also states that the court hearing the case against the accused has no presiding judge,

and that this is unduly delaying the resolution of the case and contributing to Mr. Planchart’s

indefinite detention. There are therefore sufficient grounds for finding that there has been an

undue delay under articles 9 (3) and 14 (3) (c) of the Covenant. Furthermore, no attempt has

been made to explain why the judge hearing the case was dismissed, all of which has

contributed to the excessive delay in the resolution of this case.19 In the present case, the

Government has chosen not to challenge the prima facie credible allegations made by the

source.

58.

The Working Group also notes that Mr. Planchart was unable to receive legal

assistance as he was questioned without his lawyers being present. In this context, the

Working Group recalls that legal assistance must be guaranteed from the outset of the

deprivation of liberty and throughout the proceedings. Also, suspects must be questioned

with a lawyer present, especially if a confession is made.20

59.

According to the source’s allegations, which have not been rebutted by the

Government, Mr. Planchart’s lawyers were not given access to the contents of the case file

and were not even allowed to make copies of the documents it contained so that they could

prepare a defence. The Working Group recalls that, in order to preserve the equality of arms,

prisoners and their lawyers must be guaranteed full and complete access to, and a full copy

of, material that is related to the detention or submitted to the court.21

60.

However, the disclosure of information may be restricted: (a) if the court finds that

the restriction is necessary to pursue a legitimate aim, such as to protect national security, to

ensure respect for the rights or reputation of another person, or to protect public order, health

or morals, provided that such restrictions are not discriminatory and are in compliance with

the relevant rules of international law; and (b) if it has been demonstrated that less restrictive

measures, such as providing redacted summaries that clearly point to the factual basis for the

17 General comment No. 35, para. 38.

18 General comment No. 32, para. 30.

19 Ibid., para. 35, and general comment No. 35, para. 37.

20 See A/HRC/45/16, paras. 51 and 53.

21 Principle 12 and guidelines 11 and 13 (A/HRC/30/37, paras. 19, 20, 76 and 78–82).

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detention, would not achieve the same result. Any proposed restriction on the disclosure of

information must be proportionate.22 In the present case, the Government has not provided

any justification as to why Mr. Planchart could not have access to the contents of the case

file. This violated his rights under article 14 (1) and (3) (b) of the Covenant to a fair hearing

and to have adequate time and facilities for the preparation of a defence.23

61.

For these reasons, the Working Group concludes that the detention of Mr. Planchart

is arbitrary under category III.

62.

Lastly, the Working Group has considered issues under categories II and V but has

not found sufficient evidence to reach any conclusions under these categories.

Disposition

63.

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

The deprivation of liberty of Juan Antonio Planchart Márquez, being in

contravention of articles 3, 8, 9, 10 and 11 of the Universal Declaration of Human

Rights and of articles 2 (3); 9 (1), (2), (3) and (4); 14 (1), (2) and (3) (b); 15 (1); and

16 of the International Covenant on Civil and Political Rights, is arbitrary and falls

within categories I and III.

64.

The Working Group requests the Government of the Bolivarian Republic of

Venezuela to take the steps necessary to remedy the situation of Mr. Planchart 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.

65.

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

case, the appropriate remedy would be to release Mr. Planchart immediately and accord him

an enforceable right to compensation, and other necessary reparations for the infringement

of his rights, in accordance with international law.24

66.

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

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

Planchart and to take appropriate measures against those responsible for the violation of his

rights.

67.

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

the present case to: (a) the Special Rapporteur on the promotion and protection of the right

to freedom of opinion and expression; (b) the Special Rapporteur on the independence of

judges and lawyers; (c) the Working Group on Enforced or Involuntary Disappearances; and

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

punishment, for appropriate action.

68.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

69.

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

(b)

Whether compensation or other reparations have been made to Mr. Planchart;

22 Ibid., paras. 80 and 81, and guideline 13.

23 Opinion No. 70/2019, para. 79.

24 Deliberation No. 10 of the Working Group on Arbitrary Detention (A/HRC/45/16, annex I),

identifying the comprehensive reparations to which victims of arbitrary deprivation of liberty are

entitled.

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(c)

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

Planchart’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of the Bolivarian Republic of Venezuela with its

international obligations in line with the present opinion;

(e)

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

70.

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.

71.

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.

72.

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.25

[Adopted on 25 November 2020]

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