Opinion; Subjects: VENEZUELA (BOLIVARIAN REPUBLIC OF), ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.21-16986 (E) 230522 230522
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 28/2021 concerning Luis Javier Sánchez Rangel
(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,1 on 22 December 2020 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Luis Javier Sánchez Rangel. The Government replied to the communication on
22 March 2021. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/28
General Assembly
Distr.: General
18 November 2021
English
Original: Spanish
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Submissions
Communication from the source
4.
Luis Javier Sánchez Rangel, a citizen of the Bolivarian Republic of Venezuela, is a
lawyer who graduated from the University of the Andes.
5.
In 2012, Mr. Sánchez Rangel began working for the Public Prosecution Service as
assistant prosecutor No. 118 of the Caracas Metropolitan Area with competence for dealing
with drug-related offences. In 2014, he was transferred to Public Prosecutor’s Office No. 31
of the Caracas Metropolitan Area, which is competent to deal with the interim and oral
hearings stages of cases involving drug-related offences. On 17 November 2016, the former
Attorney General of the Republic decided to transfer Mr. Sánchez Rangel to Public
Prosecutor’s Office No. 55, which has national jurisdiction, to work as an assistant prosecutor
with full competence.
6.
At the time, Public Prosecutor’s Office No. 55 was investigating cases involving
corruption during the President’s term of office. In compliance with his new duties, Mr.
Sánchez Rangel, together with the Directorate General of Military Counter-Intelligence,
oversaw investigations with a view to bringing criminal proceedings against several
contractors and senior officials of Petróleos de Venezuela, S.A. In that connection, Mr.
Sánchez Rangel ordered a series of raids on companies involved in embezzlement in the oil
sector, including one which had close ties to the current Attorney General.
7.
At the same time, Mr. Sánchez Rangel, on behalf of Public Prosecutor’s Office No.
55, initiated an investigation into the Odebrecht case and submitted a request for a warrant to
search the offices of the Odebrecht construction company to Procedural Court No. 11 of the
Caracas Metropolitan Area. On 14 February 2017, the Public Prosecution Service carried out
the search, which uncovered several pieces of evidence incriminating the relatives of a person
who had been a senior government official at the time of the events. Mr. Sanchez Rangel
subsequently summonsed these individuals in order to continue the investigation. However,
they failed to respond to the summons.
8.
Mr. Sánchez Rangel was subsequently subjected to threats. Around the same time, the
Supreme Court and the National Constituent Assembly removed the Attorney General and
immediately replaced her with the current incumbent on 5 August 2017.
9.
On 16 August 2017, members of the National Constituent Assembly filed a complaint
against Mr. Sánchez Rangel and other persons for allegedly committing the offences of
corruption, illicit enrichment, criminal association and extortion.
10.
On 17 August 2017, the Attorney General updated the National Constituent Assembly
on Mr. Sánchez Rangel’s legal situation and again accused him of using his position as a
public prosecutor to commit the offences of extortion and corruption. The Attorney General
also told the Assembly that Procedural Court No. 20 of the Caracas Metropolitan Area had
ordered that Mr. Sánchez Rangel be held in pretrial detention, as requested by national
prosecutors No. 11 and No. 73.
11.
On the same day, Mr. Sánchez Rangel was arrested by agents of the Bolivarian
National Intelligence Service. The public prosecutor’s office requested that Mr. Sánchez
Rangel be deprived of his liberty on the basis of a series of contracts, allegedly issued by a
foreign financial institution, that referenced bank accounts in the name of Mr. Sánchez
Rangel and other persons. Procedural Court No. 20 based its decision to issue the detention
order on allegations relating to the commission of offences involving financial assets. The
practical purpose of the measure was essentially to ensure that the trial could proceed and, to
a lesser extent, to prevent the defendant from doing anything that might stop that from
happening.
12.
On 18 and 19 August 2017, Mr. Sánchez Rangel was brought before Procedural Court
No. 20 for an arraignment hearing and the Bolivarian National Intelligence Service was
designated as the detention centre. The reasoned order setting out the decision was not
published until 8 September 2017.
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13.
On 29 September 2017, Mr. Sánchez Rangel’s lawyers filed a submission with Public
Prosecutor’s Office No. 11, which is responsible for cases involving corruption, banking,
insurance and capital markets, requesting that investigations be carried out to disprove the
allegations made by members of the National Constituent Assembly and to shed light on the
claims that gave rise to the proceedings against Mr. Sánchez Rangel.
14.
The investigation conducted by the head of the documentation division of the
Scientific, Criminal and Forensic Investigation Unit on 2 October 2017 revealed that the
aforementioned contracts are not original documents but documents produced by persons
unconnected with the banking institution. The documents contain paragraphs taken from the
contracts of other banks that bear no relation whatsoever to each other. They are fabricated
documents that were printed in colour and do not have original signatures.
15.
However, when the prosecutors became aware of these bank documents, which
disproved the accusation made against Mr. Sánchez Rangel, they decided to claim that he
had committed the offences of extortion (article 16 of the Anti-Extortion and Kidnapping
Act), misuse of confidential information (article 68 of the Anti-Corruption Act), theft of seals
(article 230 of the Criminal Code) and criminal association (article 35 of the Act on
Organized Crime and the Financing of Terrorism).
16.
Around 21 August 2017, national prosecutors No. 11 and No. 73 informed Mr.
Sánchez Rangel that he could be released from detention if he identified the former Attorney
General and several other individuals as members of an extortion network. Mr. Sánchez
Rangel refused to make such a statement and did not file a complaint against any of the
persons mentioned by the prosecutors. According to the source, the prosecutors retaliated by
delaying the proceedings so that the preliminary hearing could not take place. The
prosecutors’ plan has proved effective, as Mr. Sánchez Rangel has been deprived of his
liberty in El Helicoide for three years and his preliminary hearing has not yet taken place.
17.
On 25 August 2017, Procedural Court No. 20 issued a warrant to search the property
of a relative of Mr. Sánchez Rangel on the grounds that this relative was the person designated
by Mr. Sánchez Rangel to commit the offences of which he was accused.
18.
On 14 September 2017, Mr. Sánchez Rangel’s lawyers submitted an application for
judicial review to Procedural Court No. 20 because they had requested authorization for two
impartial handwriting experts to examine the documents that allegedly proved Mr. Sánchez
Rangel’s guilt. The purpose of the examination was to scrutinize the legality of the
documents, the authenticity of the signature and the extent to which the signature resembled
that of Mr. Sánchez Rangel. The lawyers also requested that some testimonies be classified
as pretrial evidence.
19.
On 13 October 2017, Procedural Court No. 20 issued a ruling denying the application
for judicial review filed by the lawyers. It considered that, in the case in point, the principles
regulating the jus puniendi of the State had not been violated and the court was therefore not
empowered to intervene, since the Public Prosecution Service is an autonomous body that is
responsible for the investigation process. It also denied the application to have the
aforementioned testimonies classified as pretrial evidence on the grounds that the lawyers
had failed to demonstrate that the witness would be unable to testify at the time of the oral
hearing – for instance because he or she was ill or travelling abroad – and therefore the
requirements for pretrial evidence were not met.
20.
The issuance of a ruling on the appeal against the pretrial detention order was
unjustifiably delayed. On 12 September 2017, the lawyers filed an appeal against the decision
ordering that Mr. Sánchez Rangel be held in pretrial detention, which had been issued by
Procedural Court No. 20 on 18 August 2017. The lawyers argued, firstly, that the Public
Prosecution Service had failed to establish that a punishable act had been committed;
secondly, that it had failed to put forward evidence that the offence had been committed by
Mr. Sánchez Rangel; and, thirdly, that the requirements regarding the appropriateness of
pretrial detention, established in article 236 of the Code of Criminal Procedure, had not been
met.
21.
On 11 July 2018, the Court of Appeal of the Criminal Judicial Circuit of the Caracas
Metropolitan Area admitted the appeal, 10 months after it had been filed. On 12 July 2018,
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Chamber No. 9 of the Court of Appeal received the case file from Procedural Court No. 20
and a reporting judge was appointed.
22.
On 27 September 2018, Chamber No. 9 of the Court of Appeal found a correction was
necessary in the calculation of the deadline for filing the appeal. On 15 October 2018,
Procedural Court No. 20 agreed to correct the error found in the calculation of the deadlines
applicable to Mr. Sánchez Rangel’s case. On 16 October 2018, Chamber No. 9 of the Court
of Appeal again received Mr. Sánchez Rangel’s case file from Procedural Court No. 20; on
18 October 2018, it identified a new point to correct, which would entail a longer procedural
delay. This delay was unjustified since the Chamber should have noticed the point to be
corrected at the previous stage in the proceedings, which would have been the appropriate
point in the procedure to do so.
23.
On 23 October 2018, Procedural Court No. 20 received Mr. Sánchez Rangel’s case
file from Chamber No. 9 of the Court of Appeal and issued an order setting out the date of
the arraignment hearing and the decision to hold Mr. Sánchez Rangel in pretrial detention, as
well as the date on which the appeal against the decision was filed.
24.
On 12 November 2018, Procedural Court No. 20 referred the case to Chamber No. 9
of the Court of Appeal. Chamber No. 9 accepted the case on 22 November 2018 and, on 26
November, issued an order setting out new corrections to be made, which involved returning
the case file for the third time to Procedural Court No. 20.
25.
On 4 December 2018, one year and three months after the appeal had been filed,
Chamber No. 9 of the Court of Appeal issued a judgment dismissing the arguments in the
appeal concerning the failure of Procedural Court No. 20 to publish the text of its decision
on pretrial detention. The publication of such decisions is a fundamental requirement for
guaranteeing a defendant’s right to a defence; it is also one element of the court’s duty to
explain the reasoning behind its decision. Furthermore, the preambular paragraphs of the
judgment mixed up the arguments put forward by two different defendants, which led to the
appeal of 12 September 2017 against the decision of 18 August 2017 being declared
inadmissible.
26.
On 23 May 2018, Mr. Sánchez Rangel submitted an application for amparo to the
Court of Appeal in connection with the failure to rule on the following applications filed by
his defence: (a) the application for a review of the decision to impose pretrial detention, dated
14 September and 12 December 2017; (b) the appeal filed on 12 September 2017; (c) the
application concerning pretrial evidence of 14 September 2017; and (d) the application for
transfer to a health centre for cardiological examinations. The application for amparo was
filed because no rulings had been issued within the legal time limits established in article 161
of the Code of Criminal Procedure, which constituted a denial of justice and a violation of
the right to due process. This application was the only remedy for these constitutional
violations.
27.
On 28 May 2018, the application for amparo was declared inadmissible by the Court
of Appeal, which based its decision on a simple oral statement by the judge of Procedural
Court No. 20, who claimed, by telephone, that she had ruled on all the proceedings initiated.
The defence subsequently filed an appeal against this decision. This appeal is pending before
the Constitutional Chamber of the Supreme Court (case file No. 0650-2018), but no judgment
has been issued to date.
28.
On 21 March 2019, Mr. Sánchez Rangel’s lawyers submitted an application for
amparo to the Supreme Court alleging that Chamber No. 9 of the Court of Appeal had: (a)
been responsible for an unjustified delay in processing the appeal and ruling on the question
of admissibility; (b) violated the right to review by a second court; (c) violated the right to
effective judicial protection by failing to observe the obligation to respect procedural time
limits or to consider the fact that Mr. Sánchez Rangel was in detention; and (d) failed to
notice that Procedural Court No. 20 was responsible for a serious procedural delay in
processing the appeal. On 18 September 2019, the lawyers filed a brief with the Supreme
Court requesting it to rule on the application for amparo.
29.
On 24 November 2020, the Constitutional Chamber of the Supreme Court stated that
the decision of Chamber No. 9 of the Court of Appeal of 4 December 2018, in rejecting Mr.
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Sánchez Rangel’s appeal as time-barred, had violated his rights to a defence, due process, a
review by a second court and effective judicial protection. The Constitutional Chamber
declared the application for amparo to be admissible in limine litis. Chamber No. 9 of the
Court of Appeal was ordered to issue a new judgment and to rule on the appeal formulated.
However, the judgment did not address the merits of the case, namely the arbitrary
deprivation of liberty.
30.
The source points out that multiple applications for a review of the detention order
were filed but lapsed as the deadlines for action expired. Mr. Sánchez Rangel’s lawyers filed
their first application for a review of the pretrial detention order with Procedural Court No.
20 on 12 December 2017, on the grounds that the circumstances that had led to the imposition
of this measure had changed significantly. They subsequently requested the imposition of a
less onerous measure from among the alternative precautionary measures provided for in
article 242 of the Code of Criminal Procedure.
31.
On 16 April 2018, the lawyers submitted a second application for review of the pretrial
detention order to Procedural Court No 20. They argued that the decision to impose the
measure had been based on documents that were wrongly thought to be originals: the decision
was therefore unfounded. As the documents were not presented on the day of the hearing,
there was no evidence to justify the decision to impose pretrial detention, which should
therefore be rescinded. The lawyers requested a review of the pretrial detention order, since
the procedural requirements established by the Court could be satisfied by a less onerous
measure.
32.
On 8 January 2019, the lawyers submitted another application for review of the
pretrial detention order. On the same day, Procedural Court No. 20 dismissed the application
and consequently ordered that the measure be maintained on the grounds that it was the most
appropriate means of ensuring the defendant’s appearance in the criminal proceedings against
him. Additionally, it issued an order for Mr. Sánchez Rangel to be transferred on 15 January
2019 for the preliminary hearing.
33.
On 6 February 2019, the lawyers filed a new application for review of the pretrial
detention order with Procedural Court No. 20, on the grounds that accused persons have the
right to obtain from the court a review of the various factors that led to the imposition of this
measure. They requested the Court to carry out the review since the circumstances that had
led to the imposition of pretrial detention had changed considerably. On 11 February 2019,
however, the Court dismissed the application on the grounds that, under article 250 of the
Code of Criminal Procedure, custodial measures must be maintained during the course of
proceedings as long as the conditions justifying the decision to impose them remain
unchanged.
34.
On 16 August 2019, the lawyers requested that their client’s pretrial detention order
be rescinded. On 28 August 2019, Procedural Court No. 20 turned down the request, stating
that, while it was true that accused persons could not be subjected to a custodial measure
exceeding two years without a preliminary hearing taking place, in Mr. Sánchez Rangel’s
case, the circumstances in which the punishable act was committed and the magnitude of the
harm caused should be taken into account, especially as the offences in question undermined
the fundamental guarantees provided by the State.
35.
On 8 November 2019, an appeal against the decision of 28 August 2019 was filed.
The appeal claimed that the judgment was flawed as it not only failed to provide an adequate
statement of grounds – in that it had failed to address, analyse and establish a conclusion on
each of the arguments and allegations raised in the request for the pretrial detention order to
be lifted – but also contained inconsistent reasoning. The appeal also argued that it was the
court and the Bolivarian National Intelligence Service that were responsible for the
procedural delay – the two-year period during which no ruling was issued and no preliminary
hearing was held. The source reports that it is still awaiting a decision on the appeal.
36.
On 5 October 2017, Procedural Court No. 20 issued an order ratifying a warrant for
Mr. Sánchez Rangel’s transfer to the court’s facilities on 31 October 2017. On 26 February
2018, the court issued a second transfer warrant, this time for 5 March 2018. The preliminary
hearing was scheduled for 5 May 2018. When that day arrived, however, the preliminary
hearing was postponed to 28 May 2018, then to 25 June 2018 and finally to 16 July 2018.
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37.
On 16 July 2018, it was postponed yet again, this time to 30 July 2018. Once that day
arrived, it was postponed to 15 August 2018, then to 4 September 2018 and finally to 1
October 2018. On 20 September 2018, Procedural Court No. 20 issued a warrant for Mr.
Sánchez Rangel’s transfer to the court’s facilities on 27 September 2018. On this date, the
Court issued another transfer warrant, this time for 2 October 2018. On 1 October 2018, the
preliminary hearing was postponed to 18 October 2018. On 11 October, Procedural Court
No. 20 ratified a transfer warrant for 22 October 2018. On 18 October, the preliminary
hearing was rescheduled for 7 November 2018.
38.
On 7 November 2018, the preliminary hearing was postponed to 5 December 2018.
On 15 January 2019, the preliminary hearing was postponed again, this time to 25 February
2019. On 25 February 2019, the preliminary hearing was postponed to 25 March 2019. On
that day, the hearing was postponed to 29 April 2019 and then to 10 June 2019. According
to the source, this was the thirteenth time that the proceedings had been postponed. On 10
June 2019, the preliminary hearing was postponed to 25 June 2019, then to 9 July 2019 and
then to 18 July 2019. On 18 July 2019, the preliminary hearing was deferred again to 26
September 2019.
39.
On 17 December 2019, the Constitutional Chamber of the Supreme Court requested
the President of the Criminal Judicial Circuit of the Caracas Metropolitan Area to take the
relevant administrative measures to locate the case file. According to the source, the above
indicates that it was unlawful of Procedural Court No. 20 to hold up the scheduling of
hearings on the grounds that the Constitutional Chamber of the Supreme Court had requested
the original case file (“unlawful” because such a request does not prevent hearings from being
held).
40.
The source also notes that the court to which the case had been assigned repeatedly
refused to allow access to the case file. Between 23 September 2017 and 3 May 2018, the
lawyers made 12 unsuccessful trips to the court office to consult the case file.
41.
On 24 April 2018, the defence sent a written submission to Procedural Court No. 20
in which it alleged that its client’s constitutional rights had been violated as the office had
systematically denied it access to the case file. The submission listed 15 different occasions
on which access to Mr. Sánchez Rangel’s case file had been denied, constituting a clear
violation of his right to a defence and to due process. As a result, the defence had been unable
to check whether the various appeals it had filed had been properly processed or whether its
petitions had been answered. Additionally, the defence pointed out that the principle of the
autonomy and independence of the judiciary cannot be used to justify a violation of a
defendant’s rights, including his or her right to an expert defence based on the material
evidence put forward in criminal proceedings.
42.
Procedural Court No. 20 was also requested to stop systematically violating Mr.
Sánchez Rangel’s rights and obstructing the exercise of his defence. Not only has no ruling
been issued on this appeal, but Procedural Court No. 20 has continued to interfere in the work
of the defence, as it has done since the first day, preventing the accused from exercising his
rights and hindering the work of the defence. The source also states that the judge keeps this
case file in a separate archive from the rest of the case files.
43.
The source submits that Mr. Sánchez Rangel’s detention falls under categories I, III
and V of the Working Group.
44.
With regard to categories I and III, the source argues that Mr. Sánchez Rangel’s
deprivation of liberty was arbitrary and unjustified, citing article 9 (3) of the Covenant, the
jurisprudence of the Working Group, article 7 (2) of the American Convention on Human
Rights and the case law of the Inter-American Court of Human Rights.
45.
The source notes that the reasoned order setting out the decision issued at the
arraignment hearing on 18 and 19 August 2017 was not published until 8 September 2017.
Consequently, the specific reasons for imposing a custodial measure could not have been
known at the time when Mr. Sanchez Rangel was placed in detention. The obligation to
publish a reasoned order is established in article 240 of the Code of Criminal Procedure.
46.
The source also argues that the information expounded at the arraignment hearing
does not prove that a punishable, non-time-barred act warranting deprivation of liberty had
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been committed. The representatives of the Public Prosecution Service did not individually
identify the acts allegedly carried out by Mr. Sánchez Rangel that corresponded to the
offences cited in the charges. The prosecutors merely stated that they were confirming the
arrest report drawn up by the police and the complaint that had been submitted. Furthermore,
the judge omitted to mention which pieces of evidence had been considered in the application
for a custodial measure.
47.
The source notes that, prior to the issuance of a request for a search and arrest warrant
for Mr. Sánchez Rangel, no order to initiate an investigation had been issued. The prosecutors
acted on the basis of a complaint made by deputies of the National Constituent Assembly and
requested the arrest on the basis of evidence provided by the deputies that had not been
lawfully obtained.
48.
The source maintains that the judge did not attempt to verify whether the evidence put
forward by the prosecutors was valid and proceeded to order pretrial detention. Furthermore,
the decision did not demonstrate that there was any risk of the accused party absconding or
obstructing the course of justice, which is an essential requirement for ordering pretrial
detention. The above facts demonstrate that Mr. Sánchez Rangel’s detention was arbitrary as
it violated the right to the presumption of innocence recognized in article 11 of the Universal
Declaration of Human Rights and article 14 of the Covenant, and falls within categories I and
III.
49.
The source also notes that Mr. Sánchez Rangel has been held in pretrial detention for
a prolonged period, which indicates that his right to due process has been violated by the
judicial authorities.
50.
The source notes that a review of the pretrial detention order was requested on four
occasions but rulings have been issued only in respect of the last two requests. The
applications filed by Mr. Sánchez Rangel to obtain his release were not processed in
accordance with the standards governing access to justice enshrined in the Covenant. The
source argues that Mr. Sánchez Rangel’s detention should be found to be arbitrary under
category III, as his rights to due process and liberty of person, as recognized in articles 14
and 9 of the Covenant, were violated.
51.
There was also an unwarranted delay in ruling on the appeal filed against Mr. Sánchez
Rangel’s pretrial detention and in holding the preliminary hearing. In addition, access to his
case file was denied, restrictions were imposed on the defence and his right to be presumed
innocent was violated.
52.
According to the source, the prosecutors are aware that the contracts on which the
charges brought against Mr. Sánchez Rangel were based are not originals.
53.
Lastly, with regard to category V, the source notes that the acts attributed to Mr.
Sánchez Rangel, on the basis of which he remains in detention, are related to the
Government’s view that he belongs to an opposition group.
Response from the Government
54.
In order to be able to issue an opinion on the case described above, the Working Group
transmitted the source’s allegations to the Government on 22 December 2020, requesting a
response by 22 February 2021.
55.
The Government replied on 19 February 2021 requesting an extension, which was
granted. It sent its response on 22 March 2021, within the established deadline.
56.
In its response, the Government stated that Mr. Sánchez Rangel was deprived of his
liberty in connection with criminal proceedings brought against him for his alleged
responsibility for committing the following offences: active corruption, which is proscribed
and punishable under article 62 of the Anti-Corruption Decree, which has the status, effect
and force of a law; criminal association, which is proscribed and punishable under article 37
of the Act on Organized Crime and the Financing of Terrorism; money-laundering, which is
proscribed and punishable under article 35 of the Act on Organized Crime and the Financing
of Terrorism; and extortion, which is proscribed and punishable under article 16, read in
conjunction with article 19 (7), of the Anti-Extortion and Kidnapping Act.
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57.
The criminal investigation was initiated by the Public Prosecution Service in order to
uphold the law and in exercise of its right to initiate criminal proceedings. Under article 285
of the Constitution, an immediate criminal investigation into the alleged punishable acts that
had been reported was ordered with a view to recording any circumstances of their
commission that might affect the status and liability of the offenders and other participants
and securing any material evidence directly or indirectly related to the commission of such
acts.
58.
Mr. Sánchez Rangel’s arrest was requested by Public Prosecutor’s Office No. 73 of
the National Public Prosecution Service with jurisdiction for money-laundering and financial
and economic offences, on the basis of several pieces of evidence.
59.
The same Prosecutor’s Office also requested a warrant to search two properties, which
was granted by Procedural Court of First Instance No. 20 of the Criminal Judicial Circuit of
the Caracas Metropolitan Area.
60.
All these juridical actions were taken by the Bolivarian National Intelligence Service
in its role as a criminal investigation body, in accordance with article 113 of the Code of
Criminal Procedure, which the Government cites in its response.
61.
At the time of his arrest, Mr. Sánchez Rangel was informed of his rights and the
reasons for his arrest, as set out in the report of notification of the rights of suspects, which
bears Mr. Sánchez Rangel’s signature and fingerprints.
62.
On 18 August 2017, Mr. Sánchez Rangel was brought before the court to which the
case had been assigned for an arraignment hearing, in accordance with article 236 of the Code
of Criminal Procedure.
63.
During the arraignment hearing, all due process guarantees and the legitimate right to
a defence were respected. Mr. Sánchez Rangel was able to freely and voluntarily make any
statements that he considered pertinent to his defence and was assisted by a lawyer. At the
conclusion of the hearing, the Court ordered that he be held in detention at the facilities of
the Bolivarian National Intelligence Service.
64.
On 12 September 2017, the defence filed an appeal against the decision to hold Mr.
Sánchez Rangel in detention. It subsequently revised this appeal to correct some formal
errors. On 4 December 2018, Chamber No. 9 of the Court of Appeal of the Criminal Judicial
Circuit of the Judicial District of the Caracas Metropolitan Area declared the appeal
inadmissible.
65.
On 24 November 2020, the Constitutional Chamber of the Supreme Court overturned
the decision issued on 4 December 2018 by Chamber No. 9 of the Court of Appeal and
ordered another chamber of the Court of Appeal of the same criminal judicial circuit to hear
the case again and rule on the appeal filed by the defence lawyers.
66.
Mr. Sánchez Rangel’s detention cannot be considered arbitrary under category I since
it was ordered on the basis of article 44 of the Constitution, article 236 et seq. of the Code of
Criminal Procedure, and the applicable human rights treaties. In other words, the detention
was ordered in strict compliance with the constitutional and legal rules justifying it.
67.
The detention cannot be considered arbitrary under category III because the
proceedings were conducted in strict compliance with the guarantees of due process, fair trial
and impartiality established in articles 10 and 11 of 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.
68.
Nor can Mr. Sánchez Rangel’s detention be classified as a violation of international
human rights law on the grounds of discrimination, since he was taken into custody for the
alleged commission of offences defined in Venezuelan law without any consideration being
given to his personal situation or status. Therefore, his detention cannot be classified as
arbitrary under category V.
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69.
On 17 August 2017, Mr. Sánchez Rangel underwent a medical evaluation at the
medical service of the Bolivarian National Intelligence Service. He was diagnosed with high
blood pressure and given immediate treatment.
70.
Mr. Sánchez Rangel has been continuously assisted by a defence lawyer of his choice,
who has defended his rights and interests at all times and made use of the remedies provided
for in the Venezuelan legal system, thereby guaranteeing the right to due process.
71.
Mr. Sánchez Rangel has been afforded all the guarantees and ordinary and special
remedies provided for in the Venezuelan legal system, which has led to the postponement of
the preliminary hearing before the court of first instance hearing the case.
Additional comments from the source
72.
On 6 April 2021, the source submitted its comments on the Government’s response.
73.
The source notes that Mr. Sánchez Rangel is being held in detention for the offences
of active corruption, criminal association, money-laundering and extortion. However, the
prosecutors responsible for the case decided to change the offences when they learned that,
as the investigation had determined, the contracts presented were not originals.
74.
The source refutes the Government’s claim that Mr. Sánchez Rangel has been
afforded all the guarantees and ordinary and special remedies provided for in the Venezuelan
legal system. He has been held in pretrial detention for more than three years, while article
230 of the current Code of Criminal Procedure provides that conditional release must be
granted after two years of detention.
75.
In its response, the State party does not conclusively establish that due process has
been respected in the case of Mr. Sánchez Rangel and limits itself to making general claims
without putting forward sufficient evidence.
76.
In a rejoinder, the source analyses each of the State party’s claims and, in support of
its arguments, refers to the case law of the Inter-American Court of Human Rights, which
has determined, in cases involving the Bolivarian Republic of Venezuela heard by the Court,
that discrimination may be based on the perception that others have of an individual’s
relationship with a group or social sector, irrespective of whether this tallies with the facts or
the victim’s own views.
77.
The source reaffirms its claim that Mr. Sánchez Rangel is being detained for political
reasons and that his detention falls under categories I, III and V.
Discussion
78.
The Working Group thanks the parties for their contributions to the resolution of the
present case.
79.
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.2
Category I
80.
The Working Group received information from the source indicating that, on 16
August 2017, members of the National Constituent Assembly filed a complaint concerning
the alleged commission of the offences of corruption, illicit enrichment, criminal association
and extortion by Mr. Sánchez Rangel and other persons. On 17 August 2017, the Attorney
General updated the Constituent National Assembly on Mr. Sánchez Rangel’s legal situation
and again accused him of using his position as a public prosecutor to commit the offences of
extortion and corruption.
81.
Procedural Court No. 20 of the Caracas Metropolitan Area had ruled that Mr. Sánchez
Rangel should be held in pretrial detention, as requested by prosecutors No. 11 and No. 73,
2 A/HRC/19/57, para. 68.
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who have national jurisdiction, on the grounds that he had allegedly committed offences
related to financial assets. The practical purpose of the measure was essentially to ensure that
the trial could proceed and, to a lesser extent, to prevent the defendant from doing anything
that might stop that from happening.
82.
The source has informed the Working Group that Mr. Sánchez Rangel was arrested
by agents of the Bolivarian National Intelligence Service, who produced an arrest warrant
containing the pretrial detention order issued by Procedural Court No. 20 on 17 August 2017
in connection with the alleged commission of offences related to financial assets.
83.
The Government, for its part, states that the Attorney General’s Office applied for the
warrant at the request of the National Constituent Assembly because bank accounts in the
name of Mr. Sánchez Rangel and other persons were referenced in a series of contracts
allegedly issued by a foreign financial institution.
84.
The Government claims that Mr. Sánchez Rangel was arrested on charges of active
corruption (under article 62 of the Anti-Corruption Decree, which has the status, effect and
force of a law), criminal association (under article 37 of the Act on Organized Crime and the
Financing of Terrorism), money-laundering (under article 35 of the Act on Organized Crime
and the Financing of Terrorism) and extortion (under article 16, read in conjunction with
article 19 (7), of the Anti-Extortion and Kidnapping Act).
85.
However, as the Working Group has previously stated, in order for deprivation of
liberty to have a legal basis, it is not sufficient for there to be a law authorizing the arrest.
The authorities must also invoke that legal basis and apply it to the circumstances of the case
by providing substantiated and reasoned grounds in the arrest warrant.
86.
The Working Group notes that Mr. Sánchez Rangel has been held in pretrial detention
for more than three years. For the Human Rights Committee,3 detention must be justified as
reasonable, necessary and proportionate in the light of the circumstances and reassessed as it
extends in time. It must not be punitive in nature and must be based on an individual
assessment of each individual.
87.
The Working Group recalls that article 9 of the Covenant requires anyone arrested or
detained on a criminal charge to be brought promptly before a judge authorized to exercise
judicial power. As the Working Group has reiterated in its jurisprudence, and the Human
Rights Committee has specified, 48 hours is ordinarily sufficient to satisfy the requirement
of bringing a detainee “promptly” before a judge or other officer authorized by law following
his or her arrest; any longer delay must remain absolutely exceptional and must be justified
under the circumstances. The Working Group finds that Mr. Sánchez Rangel was not brought
promptly before a judicial authority, in violation of his rights under article 9 of the Universal
Declaration of Human Rights and article 9 of the Covenant. Consequently, the authorities
have failed to establish the legal basis for his detention in accordance with the Covenant.
88.
Furthermore, the Working Group recalls that, according to the 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, 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. Any form of deprivation of liberty on any ground must be subject to
effective oversight and control by the judiciary. This has been denied to Mr. Sánchez Rangel
on several occasions during the proceedings against him.
89.
In the view of the Working Group, it has been demonstrated that the arrest took place
in accordance with national law and article 9 (2) of the Covenant, which states that anyone
who is arrested must be informed of the reasons for his or her arrest and promptly informed
of any charges against him or her. The Government claims, without providing any further
information, that the authorities respected the rule that the information provided to arrested
persons must include not only the general legal basis for the arrest but also sufficient factual
details to indicate the substance of the complaint, such as the unlawful act. However, the
source argues that no analysis was ever carried out to identify the various pieces of evidence
that led to this measure being taken. Thus, while article 9 (2) of the Covenant has not been
3 General comment No. 35 (2014), para. 18.
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violated, there has been a blatant violation of article 14 (3) (a), which provides that arrested
persons must be informed promptly of the nature and cause of the charges against them.
90.
The Working Group is persuaded that Mr. Sánchez Rangel’s pretrial detention
constitutes a violation of the rule of international law providing that such detention should be
the exception and not the rule and should be adopted only as a measure of last resort and on
an exceptional basis. Moreover, it must be imposed for the shortest possible period of time.
Pursuant to article 9 (3) of the Covenant, the justification for pretrial detention must be
analysed in a reasoned judicial decision in every case. The documents examined show that
this was not done in the case of Mr. Sánchez Rangel.
91.
Article 9 (3) of the Covenant provides that the release of persons awaiting trial may
be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgment. In any case, pretrial detention should
be an exception made in the interests of justice and the accused person should be released if
there are measures in place to guarantee that he or she will appear for trial and for execution
of the judgment. It is important to note that, when pretrial detention is prolonged, as it has
been in the case of Mr. Sánchez Rangel, there is all the more reason for the accused to be
released pending trial.
92.
In the light of the foregoing, the Working Group concludes that Mr. Sánchez Rangel
has been held in pretrial detention for more than three years, in violation of article 9 (3) of
the Covenant, and that his deprivation of liberty is arbitrary under category I.
Category III
93.
With regard to category III, the Working Group notes that the fundamental rules of
due process have not been observed, particularly with regard to the excessive length of time
during which Mr. Sánchez Rangel has been held in pretrial detention. The constant
postponements of the hearing have deprived Mr. Sánchez Rangel of the guarantees of due
process and prevented a prompt decision on the lawfulness of his detention from being issued,
as required under articles 3 and 9 of the Universal Declaration of Human Rights and principle
32 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.
94.
Furthermore, article 14 (3) (c) of the Covenant guarantees the right of everyone
charged with a criminal offence to be tried without undue delay. This guarantee is reinforced
by the views of the Human Rights Committee, which 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 reason are incompatible with the Covenant and compromise the
impartiality of a trial.
95.
Furthermore, article 9 (1) of the Covenant provides that everyone has the right to
liberty and security of person, as does article 3 of the Universal Declaration of Human Rights.
Article 7 (5) of the American Convention on Human Rights further establishes that all
detained persons have the right to be brought before a judge within a reasonable time or to
be released without prejudice to the continuation of the proceedings, and that their release
may be subject to guarantees to assure their appearance for trial.
96.
In the case of Mr. Sánchez Rangel, the Working Group is persuaded that, although he
has had legal representation to enable him to exercise his rights, the efforts made by his
representatives to ensure respect for due process have been unsuccessful.
97.
The Working Group notes that, even if an individual’s arrest has been carried out in
accordance with article 9 of the Covenant, this does not automatically mean that the ongoing
deprivation of his or her liberty is also in compliance with this article. In the present case, the
detention has been excessively prolonged because the procedures necessary for regularizing
Mr. Sánchez Rangel’s legal situation were delayed on several occasions. On these occasions,
at least, Mr. Sánchez Rangel was effectively deprived of his right to defend himself properly,
in violation of article 9 (4) of the Covenant.
98.
The Working Group notes that Mr. Sánchez Rangel’s lawyers encountered serious
and repeated obstacles in their efforts to gain access to the case file, in violation of article 14
(3) (b) of the Covenant. The Working Group notes that, according to the source’s report, the
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lawyers went to the court office 12 times between 23 September 2017 and 3 May 2018 to
consult file No. 20C-763-17.
99.
The source has shown that access to the case file was denied on 15 different occasions,
violating Mr. Sánchez Rangel’s right to a defence and due process as well as principle 12 and
guidelines 12 and 14 of the 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. All this made it impossible for the defence to check whether the various appeals it
had filed had been properly processed or whether its petitions had been answered.
100.
In the light of these allegations, the Working Group is not persuaded that the lawyers
were granted access to the case file in sufficient time to allow them to prepare a defence.
Consequently, the trial did not meet the standard of an impartial hearing established in article
10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant. Nor did
it comply with principle 12 and guidelines 12 and 14 of the 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. For these reasons, the Working Group, in
accordance with paragraph 33 (a) of its methods of work, refers the present case to the Special
Rapporteur on the independence of judges and lawyers for appropriate action.
101.
The source argues that Procedural Court No. 20 unlawfully stopped the scheduling of
hearings on the grounds that the Constitutional Chamber of the Supreme Court had requested
the original case file. Furthermore, on 4 December 2018, one year and three months after the
appeal had been filed, Chamber No. 9 of the Court of Appeal issued a judgment in which it
dismissed the arguments set out in the appeal concerning the failure of Procedural Court No.
20 to publish the text of the decision on pretrial detention. And yet the publication of such
decisions is a fundamental requirement for guaranteeing a defendant’s right to a defence and
is also one element of the court’s duty to explain the reasoning behind its decision.
102.
On 24 November 2020, the Constitutional Chamber of the Supreme Court ruled that
the decision adopted by Chamber No. 9 of the Court of Appeal on 4 December 2018, in
rejecting Mr. Sánchez Rangel’s appeal as time-barred, had violated his rights to a legitimate
defence, due process, review by a second court and effective judicial protection. The
Constitutional Chamber ordered another chamber of the Court of Appeal of the same criminal
judicial circuit to hear the case again and rule on the appeal filed by the defence lawyers.
However, the chamber of the Court of Appeal disregarded the request and, at the time of
writing, has not ruled on the merits of the case, namely the arbitrary deprivation of liberty.
103.
The Working Group takes into account the fact that the Constitutional Chamber
declared the actions of the chamber of the Court of Appeal to be in limine litis. Thus, the
country’s highest constitutional court has rejected the proceedings before that chamber for
failing to comply with the rules or legal requirements, and considers that the chamber has
violated Mr. Sánchez Rangel’s rights, including his right to effective judicial protection.
104.
The Working Group finds that Mr. Sánchez Rangel’s right to due process, his right to
be tried promptly by an impartial court and his right to judicial oversight have been violated.
The source points out that numerous requests for a review of the detention measure were filed
but lapsed as the deadlines passed. Mr. Sánchez Rangel’s lawyers filed their first application
for review of the pretrial detention measure with Procedural Court No. 20 on 12 December
2017, on the grounds that the circumstances cited to justify the imposition of this measure
had changed significantly. Accordingly, they requested that a less onerous measure be
imposed.
105.
The Working Group draws attention to the guarantee established by the Human Rights
Committee, which stresses that the right to equality before the courts and tribunals and to a
fair trial is a key element of human rights protection. Article 14 (1) of the Covenant
guarantees a number of specific rights and, in general terms, establishes the principles of
equal access and equality of arms, ensuring that the parties to proceedings are treated without
any discrimination.
106.
The Working Group also wishes to cite the presumption of innocence, which is
guaranteed by article 11 of the Universal Declaration of Human Rights and article 14 (2) of
the Covenant. Furthermore, general comment No. 24 (1994) of the Human Rights Committee
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establishes that the presumption of innocence is jus cogens, i.e., a human right that cannot be
suspended and a principle of international law that, in Mr. Sánchez Rangel’s case, has been
seriously violated by a pretrial detention measure that has so far lasted more than three years.
107.
The Working Group has thoroughly reviewed the Government’s response and notes
that, according to this response, legal rules and procedure form part of the national legal
system and are in strict compliance with international human rights standards. However, the
Government has failed to put forward sufficient evidence to justify the extensive delay in
processing the constant requests and appeals submitted by Mr. Sanchez Rangel’s lawyers. It
has also failed to justify the failure to comply with the judgments issued by the Constitutional
Chamber of the Supreme Court, the refusal to grant access to procedural files (on 15
occasions to date, according to the source) and other serious violations of due process, all of
which amount to violations of rights guaranteed by the Covenant and the Universal
Declaration of Human Rights.
108.
In the light of the foregoing considerations concerning violations of the guarantees of
due process, the Working Group concludes that, in the case of Mr. Sánchez Rangel, the non-
observance of international standards relating to the right to a fair and impartial trial, as
recognized 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 render the deprivation of liberty arbitrary
under category III.
109.
This case is one of many that have been brought before the Working Group in recent
years concerning arbitrary detention in the Bolivarian Republic of Venezuela. These cases
follow a familiar pattern of prolonged detention pending trial in which one or more of the
following legal situations are seen to occur: denial of access to case files, excessive delays in
processing appeals, incommunicado detention, prosecution under vaguely worded criminal
offences for the peaceful exercise of human rights, denial of access to legal counsel, brief
trials behind closed doors in which due process is not observed, disproportionate sentences
and denial of access to the outside world. This pattern indicates a systemic problem with
arbitrary detention in the Bolivarian Republic of Venezuela, which, if it continues, may
amount to a serious violation of international law.
Category V
110.
The Working Group is not persuaded that the different actions described in this
document fall under category V; the source has limited itself to stating, without evidence,
that Mr. Sánchez Rangel has been subjected to discrimination for different reasons. However,
Mr. Sánchez Rangel is known to have been a government official and is accused of having
committed specific offences related to the handling of public funds and other matters. For its
part, the Government has simply denied this claim.
111.
In the view of the Working Group, there is no evidence to indicate that the deprivation
of liberty constituted 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. Therefore, this category will not be
included in this analysis.
112.
The Working Group would welcome the opportunity to work constructively with the
Government to address problems concerning arbitrary detention and, 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 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. The Working Group recalls that, under certain circumstances, widespread or
systematic imprisonment or other severe deprivation of liberty in violation of fundamental
rules of international law may constitute crimes against humanity.
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Disposition
113.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Luis Javier Sánchez Rangel, being in
contravention of articles 3, 8, 9, 10 and 11 of the Universal Declaration of Human
Rights and articles 9 (1), (3) and (4) and 14 (1), (2) and (3) (a), (b) and (c) of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
114.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Mr. Sánchez Rangel 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.
115.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Sánchez Rangel immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law. In the current context of the global coronavirus disease (COVID-19)
pandemic and the threat that it poses in places of detention, the Working Group calls upon
the Government to take urgent action to ensure his immediate release.
116.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Sánchez Rangel and to take appropriate measures against those responsible for the violation
of his rights.
117.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the independence of judges and lawyers, for
appropriate action.
118.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
119.
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. Sánchez Rangel has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Sánchez
Rangel. The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord him an enforceable right to compensation
and other reparations, in accordance with international law.
(c)
Whether an investigation has been conducted into the violation of Mr. Sánchez
Rangel’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.
120.
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.
121.
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
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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.
122.
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.4
[Adopted on 7 September 2021]
4 Human Rights Council resolution 42/22, paras. 3 and 7.