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.22-03506 (E) 101122 111122
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 52/2021 concerning Juan Bautista Guevara Rodríguez,
Otoniel José Guevara Pérez and Rolando Jesús Guevara Pérez
(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 April 2021 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Juan Bautista Guevara Rodríguez, Otoniel José Guevara Pérez and Rolando Jesús
Guevara Pérez. The Government replied to the communication on 21 July 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/2021/52
General Assembly
Distr.: General
9 March 2022
English
Original: Spanish
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Submissions
Communication from the source
4.
Juan Bautista Guevara Rodríguez, a businessman, Otoniel José Guevara Pérez, a
manager, and Rolando Jesús Guevara Pérez, retired, are adult nationals of the Bolivarian
Republic of Venezuela. Juan Guevara Rodríguez is the cousin of Otoniel Guevara Pérez and
Rolando Guevara Pérez, who are brothers.
5.
On 20 November 2004, Mr. Guevara Rodríguez was arrested by police officers, who
entered the parking garage of his home, put him in a van and took him to a “modest house”,
where he was tortured. Hours later, a member of Mr. Guevara Rodríguez’s family reported
his arrest to the Attorney General’s Office and to Public Prosecutor’s Office No. 126 of the
Caracas Metropolitan Area.
6.
Mr. Guevara Rodríguez was suffocated with a plastic bag, causing him to lose
consciousness, and was repeatedly kicked in the genitals, subjected to electric shocks and
beaten with bats.
7.
On 21 November 2004, Mr. Guevara Rodríguez was taken to the headquarters of the
Sectoral Directorate General of Intelligence and Prevention Services, where oxygenated
water was poured into his ears and a probe was inserted into his genitals while he was
interrogated about the murder of a public prosecutor in Caracas on 18 November 2004. On
22 November 2004, he was transferred to a country house, where he was threatened with the
torture of his family. On 23 and 24 November 2004, he was forced to listen as a woman and
a child, purportedly his family, were allegedly tortured, even after having told the officers
that he would sign any document they put in front of him.
8.
On 25 November 2004, he was taken to a hotel, where he was shaved, dressed in
someone else’s clothes and left with a pillowcase over his head. In his statement at the
subsequent national trial, Mr. Guevara Rodríguez indicated that, on 28 November 2004, a
group of agents from the Sectoral Directorate General of Intelligence and Prevention Services
entered the hotel room and placed a pistol, some money and a grenade under the bed. Later,
police officers entered the room pursuant to an arrest warrant issued by Supervisory Criminal
Court of First Instance No. 34 of the Caracas Metropolitan Area on 25 November 2004 and
gathered all the supposed evidence for use at trial. He was taken to the premises of the
Sectoral Directorate General of Intelligence and Prevention Services, where he spent a week.
He received little to no food and was given water on only two occasions. He was kept in the
dark, wearing only his underwear.
9.
Otoniel Guevara Pérez was arrested on 23 November 2004 by agents of the Scientific,
Criminal and Forensic Investigation Unit upon arriving at his place of work in Caracas. He
was approached by a van from which several people emerged. They proceeded to tear off his
jacket and place it over his head, bind his hands and feet with adhesive tape and blindfold
him. They took him to an unknown location, where they tied him up, removed all his clothes,
sat on him and began to suffocate him while interrogating him. They blindfolded him and
made threats against his life. They subjected him to electric shocks, then tied his wrists
together, hung him from the ceiling and continued to administer electric shocks. On 24
November 2004, he was tortured again, then the agents removed his restraints, applied
ointment to his hands and bundled him into his own car, in which they drove for several
hours. On 25 November 2004, the group arrived at a hotel.
10.
On 26 November 2004, Otoniel Guevara Pérez was taken to an unknown location,
where he was told that he was going to be killed. His handcuffs were removed, his arms were
tied behind his back and he was taken to another place, where he was pushed out of the car,
told that “his time had come”, thrown into an enclosure face down on the ground and left
there. When he heard cars leaving the site, he tore the tape from his body and removed the
blindfold from his face. At this point, his brother Rolando appeared and they both fled.
11.
On 26 November 2004, the Guevara Pérez brothers were found by members of
Regional Command No. 2 of the National Guard. They were ordered to return to the site
where they had been released, where, in the presence of witnesses, they gathered the
blindfolds, rope and plastic tape that had been left there. They were taken to the premises of
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Regional Command No. 2, where their statements were taken, after which they were brought
to a medical clinic, where a doctor examined them. They were then transferred back to the
premises of Regional Command No. 2 and told that a helicopter would come to take them to
Caracas. They were not provided with any information regarding their detention, nor were
they read their rights.
12.
On 27 November 2004, the Guevara Pérez brothers were transferred to the
headquarters of the Sectoral Directorate General of Intelligence and Prevention Services in
Caracas, where they were examined again, this time by the doctor of the Directorate General
and then by a doctor of the Scientific, Criminal and Forensic Investigation Unit. That same
day, a public prosecutor took statements from them. At the end of the interview, they asked
the prosecutor why they were still being held in the detention facilities of the Directorate
General but received no reply. The family of Rolando Guevara Pérez reported his
disappearance on 24 November 2004 to Public Prosecutor’s Office No. 19 of the Caracas
Metropolitan Area.
13.
The Guevara Pérez brothers were held incommunicado from the time of their arrest
until 27 November 2004, when they were brought before Supervisory Criminal Court of First
Instance No. 34 of the Caracas Metropolitan Area. Between 27 and 29 November 2004, they
were given a hearing as defendants in the case of the murdered prosecutor. At this hearing,
they explained that they had been illegally detained and tortured.
14.
Juan Guevara Rodríguez was brought before the same court on the day he was
allegedly “found” by agents of the Sectoral Directorate General of Intelligence and
Prevention Services, i.e. on 30 November 2004. From the date of his arrest until his
appearance before the court, he was held in incommunicado detention.
15.
None of the three men was brought before a judicial authority within 24 hours of his
arrest so that the legality of his detention could be confirmed. Court No. 34 did not act on the
detention complaint submitted by the Guevaras. The judge stated that the alleged
unconstitutionality of the detention ceased when the Guevaras were brought before the Court
and could not be attributed to the Court, on the ground that any alleged violation of
constitutional rights arising from the conduct of a police agency ceases when the accused is
brought before the competent authority and his or her detention is ordered.
16.
The judge ordered that the Guevaras be kept in pretrial detention from 29 November
2004, ruling that the applicable legal requirements established in articles 250–252 of the Code
of Criminal Procedure had been met. These decisions were appealed by the Guevaras on 3
and 5 December 2004, on the grounds that no reasons for the decisions had been given and
no evidence had been put forward to support them. Their appeals were dismissed by the
Fourth Chamber of the Court of Appeal of the Caracas Metropolitan Area on 20 January
2005.
17.
The Guevaras informed Court No. 34 of the alleged acts of torture once Public
Prosecutor’s Office No. 126 of the Caracas Metropolitan Area had been designated to
investigate these events. On 3 December 2004, Rolando Guevara Pérez’s defence counsel
requested that the Public Prosecutor’s Office take steps to gather evidence. However,
although the Public Prosecutor’s Office had ordered, on 26 November 2004, that the
Guevaras undergo a forensic medical examination and the results had confirmed the physical
and psychological harm done to them, Court No. 11 decided to request the public prosecutor
to close the investigation on 19 July 2006, irrespective of the fact that none of the persons
responsible for that harm had been identified.
18.
Despite the existence of medical evidence of torture, no investigation was carried out.
The Guevaras were not granted access to copies of the case file, and the order to close the
investigation was made available to their defence counsel for notification purposes only, and
not until 3 May 2007, 10 months after the investigation had been closed.
19.
On 22 November 2004, counter-terrorism tribunals were established pursuant to
Decision No. 2004-0217 of the Supreme Court. This decision was issued days after the death
of the aforementioned prosecutor, and during the Guevaras’ detention. It granted certain
judges, who were directly appointed through an opaque process, the power to hear cases
involving terrorism-related offences that occurred throughout the country. Investigative
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measures were taken against the Guevaras before the issuance of this decision, in violation
of the principle of the non-retroactivity of criminal law.
20.
The Public Prosecution Service filed an indictment on 13 January 2005, and Court
No. 34 moved forward with criminal proceedings against the Guevaras. The Guevaras
repeatedly requested access to the documentation that had served as the basis for the
indictment; however, their requests went unanswered, which prompted them to file an
application for amparo with the Sixth Chamber of the Court of Appeal of the Caracas
Metropolitan Area on 24 January 2005. This court refused to hear the case on the ground that
it did not have jurisdiction over terrorism offences, and instead referred the case to the Fourth
Chamber of the Court of Appeal. On 24 April 2005, the Fourth Chamber dismissed the
application.
21.
On 6 June 2005, an appeal was filed with the Seventh Chamber of the Court of Appeal
against the decision issued by the trial court. This appeal was rejected on 16 September 2005
on the basis that, according to the law, Court of First Instance No. 20 had predetermined and
legitimate jurisdiction over the case.
22.
On 24 January 2006, Court of First Instance No. 20 of the Caracas Metropolitan Area
convicted the Guevaras. The Guevara Pérez brothers were both sentenced to 27 years and 9
months in prison, having been found guilty of the offences of aggravated homicide, as co-
perpetrators, and conspiracy. Mr. Guevara Rodríguez was sentenced to 29 years and 6 months
in prison, having been found guilty of the offences of aggravated homicide, as a co-
perpetrator, conspiracy, illegal possession of a weapon of war and illegal possession of a
firearm.
23.
On 6 February 2006, the Guevaras’ defence counsel filed appeals. On 25 April 2006,
these appeals were dismissed by the Seventh Chamber of the Court of Appeal. On 25 and 26
October 2006, the Guevaras’ legal representatives filed appeals in cassation.
24.
The source points to the following irregularities in the proceedings: (a) the indictment
issued by the Public Prosecution Service lacked clarity and precision and did not detail the
offences with which the Guevaras had been charged, which left them unsure as to how to
prepare their defence; (b) the Public Prosecution Service falsified procedural documents and
paid for false witnesses; (c) the defence was prevented from questioning a key witness; (d)
the Guevaras were denied access to several procedural documents, which prompted them to
file an application for amparo on 24 January 2005; and (e) the Guevaras faced obstacles to
communication with their defence counsel.
25.
On 6 August 2007, the Criminal Cassation Division of the Supreme Court dismissed
the appeals filed against the judgment of 24 January 2006.
26.
In September and November 2011, the defence requested that the Guevaras’ prison
sentences be converted into non-custodial sentences, for which they became eligible on 4
November 2011 pursuant to the sentence enforcement order issued on 17 October 2007.
These requests went unanswered.
27.
On 27 July 2012, the Guevaras filed an appeal with the Second Chamber of the Court
of Appeal of the Caracas Metropolitan Area. On 26 November 2012, the Court of Appeal
dismissed the appeal on the ground that it did not meet the applicable requirements.
28.
On 16 January 2013, the Guevaras’ defence counsel requested Criminal Sentence
Enforcement Court of First Instance No. 6 of the Caracas Metropolitan Area to order that the
Guevaras undergo behavioural and psychosocial assessments for the purposes of their being
allowed to serve non-custodial sentences. As of 2018, this request had been submitted 15
times. On 8 December 2015, the defence counsel travelled to the judge’s chambers to reiterate
the requests made and to request humanitarian relief for Rolando Guevara Pérez, as he was
suffering from various ailments for which he was not receiving medical treatment in prison.
29.
On 15 May 2018, a letter was sent to the Office of the Ombudsman requesting that
the Guevaras undergo behavioural assessments and that Rolando Guevara Pérez be granted
parole on account of his medical condition.
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30.
On 15 June 2018, the collaboration of the Attorney General’s Office was requested,
since the Ministry of People’s Power for Prison Administration had ignored the requests for
behavioural and psychosocial assessments.
31.
The Guevaras were not invited to undergo psychosocial assessments until 10
December 2018. An unfavourable decision was issued in all three cases on 12 February 2019.
On 22 February 2019, an appeal was filed against that decision. This appeal is still pending
before the Third Chamber of the Court of Appeal.
32.
The authorities used mass media to publicly incriminate the Guevaras. For example,
on 26 November 2004, the President named the Guevaras as the perpetrators of the murder
of the aforementioned public prosecutor, as did the Minister of People’s Power for Internal
Affairs, Justice and Peace and the Director of the Scientific, Criminal and Forensic
Investigation Unit, both of whom took it for granted that the Guevaras were guilty.
33.
The executive branch exerted pressure on the judges involved in the proceedings, who
followed the government line. The Attorney General spread false information at press
conferences to cover up for the real perpetrators.
34.
According to the source, in a televised interview broadcast by SOi TV on 9 May 2012,
a former Supreme Court justice stated that, the day after the death of the public prosecutor,
senior representatives of the Government met and declared that they had a “green light” to
end the Guevara brothers’ lives. On 7 May 2008, the Guevaras filed a complaint against the
former Attorney General and the five prosecutors appointed to the proceedings. This
complaint was rejected on 5 August 2008 by Court of First Instance No. 39 of the Caracas
Metropolitan Area. An appeal and an appeal in cassation were filed in respect of this decision
but both were rejected.
35.
On 22 December 2004, the Guevaras were detained on the premises of the Military
Intelligence Directorate, where they were physically and verbally abused. On 23 April 2005,
they were transferred to the detention facilities of the Sectoral Directorate General of
Intelligence and Prevention Services and, three days later, to San Francisco de Yare prison.
It was not until four days later that their relatives were able to locate them. The Guevaras’
trial was conducted while they were in prison. In March 2006, they were transferred back to
the premises of the Directorate General, where they were held in windowless cells measuring
2m2, with concrete beds. They were allowed outside only once every two weeks, for one
hour, and no fresh air entered the cells. Rolando Guevara Pérez was ill for more than a month
without the doctors of the Directorate General being able to establish what was wrong with
him. After medical examinations paid for by his family, he was diagnosed with
mononucleosis, which he had contracted from his environment.
36.
The source claims that the deprivation of liberty of the Guevaras is arbitrary under
categories I, III and V. With regard to category I, the source notes that the Guevaras were not
arrested pursuant to an arrest warrant or in flagrante delicto.
37.
The source states that Mr. Guevara Rodríguez’s right to security of person was
violated for approximately 10 days and that the Guevara Pérez brothers’ right to security of
person was violated for four days, in contravention of article 9 of the Covenant.
38.
The source argues that, under Venezuelan legislation, the time limit for bringing an
arrested person before a procedural court is 48 hours. Mr. Guevara Rodríguez was not
brought before a court until 10 days after his arrest and the Guevara Pérez brothers were not
brought before a court until four days after their arrest, meaning that the legal time limit to
comply with this obligation was exceeded and they were being held incommunicado.
Incommunicado detention violates the right of individuals to be brought promptly before a
judge, as well as their right to appeal to a court to decide as soon as possible on the lawfulness
of the detention, as recognized in article 9 (3) and (4) of the Covenant.2
39.
The source states that incommunicado detention in an unknown location amounts to
a prima facie enforced disappearance.3 In the present case, Mr. Guevara Rodríguez was
2 Opinions No. 40/2019, para. 118, and No. 57/2020, para. 70.
3 Opinions No. 76/2017, para. 59, No. 19/2019, para. 34, and No. 20/2020, para. 80.
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removed from the protection of the law for 10 days, and the Guevara Pérez brothers for four
days. Enforced disappearances violate numerous substantive and procedural provisions of
the Covenant and constitute a particularly aggravated form of arbitrary detention.4
40.
The Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court establish the
importance of a review, by an independent court, of the arbitrariness and lawfulness of
deprivation of liberty, as a means of safeguarding the right recognized in article 9 of the
Covenant.5 The incommunicado detention to which the Guevaras were subjected prevented
them from exercising their right to an effective judicial remedy to challenge their detention
and request protection from the possible violation of their right to personal liberty. This right
is enshrined in article 8 of the Universal Declaration of Human Rights and in article 2 (3) of
the Covenant.
41.
With regard to category III, the source points to the following violations of due
process and the right to a defence: (a) the incommunicado detention of the Guevaras, which
prevented them from communicating with their families and lawyers; (b) the torture to which
the Guevaras were subjected prior to being brought before the court, which was intended to
coerce them into confessing; (c) their arbitrary and unjustified pretrial detention and
subsequent trial (the indictment issued by the prosecutor’s office did not explain why each
of the Guevaras was being held criminally responsible, it was impossible to discern the extent
of their involvement in the events or the reasons why they were presumed to have been
involved, and the justification for their detention was not made clear); (d) the lack of
jurisdiction of the counter-terrorism tribunals; (e) the lack of access to the elements necessary
for an adequate defence, as the Guevaras’ lawyers faced obstacles in their attempts to contact
the Guevaras, the Guevaras were denied access to several procedural documents – prompting
them to apply for amparo on 24 January 2005 – and their lawyers were not given adequate
time and facilities to prepare a defence, in accordance with article 14 (3) (b) of the Covenant;
(f) the unjustified refusals to grant non-custodial measures and the ineffectiveness of the
remedies sought; and (g) the statements made by the authorities that violated the principle of
the presumption of innocence.
Response from the Government
42.
On 22 April 2021, the Working Group transmitted the source’s allegations to the
Government. The Working Group requested the Government to provide detailed information
about the situation of the Guevaras by 21 June 2021. In addition, the Working Group
requested the Government to ensure their physical and mental integrity.
43.
On 18 June 2021, the Government requested an extension of this deadline and was
given until 21 July 2021 to reply. The Government submitted its response on 21 July 2021.
44.
The Government notes that the Guevara Pérez brothers are serving a sentence of 27
years and 9 months in prison, having been found guilty of aggravated homicide by arson with
malice aforethought, as principal perpetrators, and of conspiracy, and that Mr. Guevara
Rodríguez is serving a sentence of 27 years and 6 months in prison, having been found guilty
of aggravated homicide by arson with malice afterthought, as co-perpetrator, and of
conspiracy, illegal possession of a firearm and illegal possession of a weapon of war. The
criminal proceedings brought against the Guevaras were related to the homicide of a public
prosecutor by means of an explosive device planted in the victim’s vehicle and detonated
while he was driving on a public street.
45.
The proceedings commenced with the arrest of the Guevaras, pursuant to a court
order, in 2004 and concluded with their conviction on 24 January 2006 by Court of First
Instance No. 20 of the Caracas Metropolitan Area. The Guevaras’ defence counsel appealed
the conviction, but the appeal was dismissed by the Seventh Chamber of the Court of Appeal
of the Caracas Metropolitan Area on 25 April 2006. The defence filed an appeal in cassation
4 Human Rights Committee, general comment No. 35 (2014), para. 17; see also A/HRC/16/48/Add.3,
and Opinions No. 5/2020, para. 74, and No. 6/2020, para. 43.
5 A/HRC/30/37, principle 6.
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against this decision with the Criminal Cassation Division of the Supreme Court. This appeal
was dismissed on 6 August 2007 on the basis that it was manifestly unfounded.
46.
The present communication was submitted by the Guevaras to the Working Group 17
years after their arrest and 14 years after the aforementioned decision of the Supreme Court,
which marked the exhaustion of all domestic remedies.
47.
This amounts to an abuse of the right of submission of communications to the
Working Group. The authors are attempting to take advantage, in bad faith, of the difficulties
involved in gaining access to the original records of the proceedings and responding promptly
to the Working Group with regard to a case that occurred almost two decades ago, in order
to obtain a ruling in their favour, in violation of the principles of international law. This abuse
of the right of submission is aggravated in the current context, as the coronavirus disease
(COVID-19) pandemic and the health restrictions introduced to contain it have hampered
State institutions and limited their ability to respond to requests.
48.
The Government cites paragraph 15 of the Working Group’s methods of work, which
expressly states that Governments should conduct appropriate inquiries so as to furnish the
Working Group with the fullest possible information. In general, such inquiries require access
to the records of the relevant judicial proceedings. In examining the present case, the Working
Group is in effect requesting access to such records, on the assumption that the Government
duly preserves records of all cases that result in a conviction while the convicted persons are
serving their sentences, especially if, as the Government claims, the persons concerned have
committed an act as appalling as the murder of a public prosecutor.
49.
The Government analyses and summarizes the jurisprudence and citations relating to
the obligations of the various treaty bodies that oversee the implementation of the main
international human rights treaties. It notes that the Working Group is required, in accordance
with its methods of work, to consider and apply the provisions of the first Optional Protocol
to the Covenant, including article 3 thereof, which provides that the Human Rights
Committee must consider inadmissible any communication submitted under the Protocol
which is anonymous or which it considers to be an abuse of the right of submission of such
communications or to be incompatible with the provisions of the Covenant.
50.
The Government emphasizes that the Working Group is required to consider and
apply article 22 (2) of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (establishing an individual communications procedure
that has been accepted by the Bolivarian Republic of Venezuela), which provides that the
Committee must consider inadmissible any communication received under article 22 which
is anonymous or which it considers to be an abuse of the right of submission of such
communications or to be incompatible with the provisions of the Convention.
51.
The Government insists that this principle is applied by most international human
rights mechanisms, including treaty bodies (the Human Rights Committee, the Committee
on Economic, Social and Cultural Rights6 and the Committee against Torture7) and other
bodies such as the United Nations Educational, Scientific and Cultural Organization.8
52.
The Government requests the Working Group to refrain from considering the present
communication, as it constitutes an abuse of the right of submission of communications to
international human rights review mechanisms.
53.
The submission of this communication to the Working Group may constitute
fraudulent use of the law in order to obtain a ruling from a United Nations mechanism in
spite of the fact that any communication submitted to the Human Rights Committee would
be declared inadmissible under article 3 of the first Optional Protocol to the Covenant.
54.
The Code of Conduct for Special Procedures Mandate Holders of the Human Rights
Council provides that mandate holders should ensure that communications are submitted by
6 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, art. 3 (2).
7 CAT/C/3/Rev.6, art. 113 (b) and (f).
8 Executive Board, 104 EX/Decision 3.3, 1978, para. 14 (a) (viii).
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persons acting in good faith in accordance with the principles of human rights. The Working
Group is required to apply this standard, in line with its methods of work.
55.
There is no reasonable justification for the submission of a communication to the
Working Group alleging an act of arbitrary detention a full 17 years after it supposedly
occurred and 14 years after the exhaustion of domestic remedies. Moreover, the submission
of such a communication is not justified by the conditions of the Guevaras’ detention, since
at all times they have been represented and assisted by private lawyers versed in international
human rights law.
56.
On 20 March 2005, the Guevaras’ defence counsel filed a petition with the Inter-
American Commission on Human Rights in connection with the alleged act of arbitrary
detention that is the subject of the present communication. This petition was declared
admissible on 28 October 2015 and is currently pending before the Commission.
57.
The Government refers to a decision of the Human Rights Committee in which it
rejected a communication submitted nine years after the events in question, stating that: “The
Committee considers that submitting the communication after such a long lapse of time
should be regarded as an abuse of the right of submission, and finds the communication
inadmissible under article 3 of the Optional Protocol and rule 96 (c) of the Committee’s rules
of procedure.”9
58.
The Government emphasizes that the Working Group should dismiss the present
communication, since almost 17 years have elapsed since the events described allegedly took
place.
59.
The Guevaras are currently serving their sentence. Their defence counsel have
requested the application of non-custodial measures on several occasions; these requests have
been reviewed by a competent court and dismissed. The place of detention of the Guevaras
has been visited several times by personnel of the Office of the United Nations High
Commissioner for Human Rights in the Bolivarian Republic of Venezuela.
60.
The Guevaras were deprived of their liberty pursuant to a court order and are serving
their sentences after being convicted by a competent court. Throughout the criminal
proceedings and during the enforcement of their sentences, the Guevaras’ lawyers have filed
all ordinary and extraordinary appeals they deemed appropriate, including regular appeals,
applications for amparo and appeals in cassation, all of which have been processed and
decided upon by the competent authorities, in accordance with the law.
Additional comments from the source
61.
In its additional comments, the source analyses each of the claims made by the State,
particularly those that refer to the delay in the submission of the facts to the Working Group.
62.
According to the Working Group’s deliberation No. 2,10 the requirements for the
admissibility of the communications that the Working Group receives are related to its
mandate under the relevant resolutions of the Commission on Human Rights and of the
Human Rights Council. If an admissibility procedure requires the prior exhaustion of
domestic remedies (or compliance with a time limit for submission), that condition is
expressly provided for in the instrument or rule concerned.
63.
In its methods of work, the Working Group does not establish a time limit for the
submission of communications or a rule concerning abuse of the right of submission. The
Working Group has previously considered a case in which the offences of which the victim
stood accused had occurred more than 15 years prior to the submission of the communication
and the victim had been in pretrial detention for 11 years.11
64.
The Working Group’s deliberation No. 3 affirms that neither the provisions of the
resolution establishing its mandate nor the discussions that led up to the adoption of that
resolution justify the view that a communication should be declared inadmissible on the
9 CCPR/C/120/D/2705/2015, para. 6.4.
10 E/CN.4/1993/24, sect. II.
11 Opinion No. 45/2020, para. 34.
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9
ground that the person or persons concerned have been convicted. The aforementioned
resolution gives the Working Group the mandate to investigate cases of detention, which
should be considered not sensu stricto, i.e. as opposed to imprisonment, but rather as
detention imposed arbitrarily or otherwise inconsistently with the relevant international
standards.12
65.
The source analyses various procedural violations with respect to the implementation
of national legislation and maintains that the Guevaras are being arbitrarily deprived of their
liberty, following the rejection of all their appeals and 23 separate requests for the application
of non-custodial measures.
66.
The source refutes the Government’s claim that the Guevaras have been afforded all
the guarantees and ordinary and special remedies provided for in the Venezuelan legal system
and states that a decision on the appeal filed on 22 February 2019 is still pending.
67.
The source rejects the Government’s claim that the Guevaras have been visited by
representatives of human rights bodies; in fact, the Guevaras have never been able to meet
with such representatives. When such persons have visited the premises of the Bolivarian
National Intelligence Service, they have been able to speak only with detainees chosen by
the authorities.
68.
The source notes that the Government has not provided any proof that the Guevaras’
detention is not arbitrary or that their right to due process has not been violated, and has
instead simply made a series of general assertions, without presenting sufficient evidence.
69.
The source reaffirms that the Guevaras are being detained for political reasons and
that their detention falls under categories I and III.
Discussion
70.
The Working Group thanks the parties for their cooperation.
71.
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.13 In the present
case, the Government replied to the Working Group within the established period.
72.
As a preliminary issue, the Working Group wishes to address the Government’s claim
that it lacks jurisdiction over the present case because a related petition has already been filed
with and is pending before the Inter-American Commission on Human Rights, because too
much time has passed and because a judgment with respect to the case has been issued and
executed by the national authorities.
73.
The Working Group recalls that the rules of procedure for handling communications
are contained in its methods of work.14 As previously noted,15 the methods of work do not
prevent it from examining a complaint that has been filed with the Inter-American
Commission on Human Rights.16 The Working Group has explained that nowhere in the
applicable legal provisions does it state that the Working Group must refrain from
considering matters that are being or have been examined under other international or
regional procedures. In addition, in accordance with the Working Group’s methods of work
and with the Human Rights Council resolution establishing its mandate, there is no
impediment that might prevent it from considering individual communications on cases of
arbitrary detention in any Member State, even if another body is considering the case,
12 E/CN.4/1993/24, sect. II.
13 A/HRC/19/57, para. 68.
14 Opinions No. 8/2018, para. 30, No. 42/2018, para. 67, No. 43/2018, para. 63, No. 44/2018, para. 71,
and No. 45/2020, paras. 41–44.
15 Opinion No. 53/2018, para. 82.
16 Opinions No. 28/1998, para. 11, No. 9/2005, para. 7, No. 52/2011, paras. 25–38, No. 21/2013, paras.
26–28, and No. 16/2016, para. 20.
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whether under an individual complaints or communications procedure or an urgent action or
precautionary measures procedure, as appropriate.17
74.
The Working Group respectfully informs the Government that, in its rules of
procedure, which are contained in its methods of work, there is no rule preventing the
examination of a communication in the event that a domestic court has rendered a final
judgment, as stated and discussed at length in its deliberation No. 3.18
75.
The Working Group further informs the Government that the Universal Declaration
of Human Rights and the provisions establishing the Working Group’s mandate constitute
jus cogens – i.e. fundamental norms of international law from which no derogation is
permitted, as codified in international law by article 53 of the Vienna Convention on the Law
of Treaties – as they have been recognized as peremptory human rights norms.19 It notes that
the strict prohibition of torture and cruel, inhuman or degrading treatment, which is
considered to be a universally recognized human right, has attained the status of jus cogens,
and that the obligation to take measures against persons who commit acts of torture is an
obligation erga omnes. Therefore, not only is the Working Group competent to rule on this
case, but it is also required to do so. Since the rights in question have the status of jus cogens
and erga omnes norms and, as such, are not time-barred, the Working Group cannot lose its
jurisdiction over the present case because of the time that elapsed between the commission
of the alleged offence and the submission of the communication, as has previously been
stated in the Working Group’s jurisprudence.20
Category I
76.
The Working Group received information from the source that the Guevaras were
violently arrested without a warrant and without being informed of the reason for their arrest,
were then taken to unknown locations, were not immediately brought before a judge, and
were held in different places while being tortured and interrogated about the murder of a
public prosecutor, an event that had occurred on 18 November 2004 in Caracas.
77.
The source states that the Guevara Pérez brothers were held incommunicado from the
time of their arrest until 27 November 2004, when they were brought before Court No. 34.
Between 27 and 29 November 2004, they were given a hearing as defendants in the case of
the murdered prosecutor. At this hearing, they explained that they had been illegally detained
and tortured.
78.
The Working Group is concerned that the Guevaras were disappeared, held without
charge and tortured for several days. Moreover, the Working Group is concerned that they
were held incommunicado, since the source states that Mr. Guevara Rodríguez was held
incommunicado from the date of his arrest until his appearance before the court nine days
later and that the Guevara Pérez brothers were held incommunicado from the time of their
arrest until 27 November 2004. The claims made in this regard have not been refuted by the
Government; the Working Group therefore decides to refer this case to the Working Group
on Enforced or Involuntary Disappearances.
79.
According to the source, none of the three men was brought before a judge within 24
hours of his arrest. Court No. 34 did not act on the detention complaint submitted by the
Guevaras at their hearing.
80.
The source notes that the Guevara brothers’ family also filed a missing person’s
report, in view of the brothers’ unknown whereabouts. These claims have not been disputed
or disproven by the Government.
81.
Furthermore, according to the source, not only were the Guevaras not informed of the
reason for their detention, but they were also kept away from their lawyers. The source insists
that the Guevaras were arrested without an arrest warrant. While the Government claims,
17 Opinion No. 57/2016, para. 102.
18 See A/HRC/22/44.
19 A/CN.4/L.682, para. 361. See also General Assembly resolutions 70/236, 71/140,
72/116 and 73/265.
20 Opinions No. 69/2019 and No. 31/2021.
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without providing any further information, that the authorities respected the applicable rule,
the source claims that no analysis was ever carried out to identify the factors that led to this
measure being taken, meaning that there has been a violation of article 14 (3) (a) of the
Covenant, which provides that arrested persons must be informed promptly of the nature and
cause of the charges against them. 21 None of these claims has been disproven in the
Government’s response, which merely states that the Guevaras were detained in accordance
with the law.
82.
The Working Group emphasizes that, in order for a deprivation of liberty to have a
legal basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must
invoke that legal basis and apply it to the circumstances of the case by issuing an arrest
warrant based on a reasoned and substantiated decision.22 In the absence of an explanation
from the Government, the Working Group recalls that article 9 of the Universal Declaration
of Human Rights provides that no one shall be subjected to arbitrary arrest, detention or exile.
The Working Group recalls that deprivation of liberty is not only a question of legal
definition, but also of fact and, as the Human Rights Committee has established, must be
justified as reasonable, necessary and proportionate and reassessed as it extends in time.23 It
must not be punitive in nature and must be based on an individualized assessment.24 There is
no indication that these requirements were met in relation to the arrest, detention and
subsequent trial of the Guevaras, and the Government has not provided evidence that they
were.
83.
The legal safeguards against arbitrary deprivation of liberty, as encapsulated in article
9 of the Universal Declaration of Human Rights and article 9 of the Covenant, require anyone
arrested or detained on a criminal charge to be brought promptly before a judge. 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 following his or her arrest; any longer delay must remain
absolutely exceptional and must be justified under the circumstances.25 The Working Group
finds that the Guevaras were not brought promptly before a judicial authority, in violation of
their rights under article 9 of the Universal Declaration of Human Rights and article 9 of the
Covenant. Consequently, the authorities failed to establish the legal basis for their detention
in accordance with the Covenant.
84.
This right is a peremptory norm of international law and applies to all forms of
deprivation of liberty, including not only detention for the purposes of criminal proceedings
but also situations of detention under administrative and other fields of law, including
military detention, detention on security grounds and detention under counter-terrorism
measures.26 Any form of deprivation of liberty on any ground must be subject to effective
oversight and control by the judiciary. The Guevaras’ rights in this regard were violated on
several occasions, both in the course of the initial proceedings and during the trial.
85.
The Working Group is persuaded that the Guevaras’ pretrial detention constitutes a
violation of the rule of international law providing that such detention should be used only
as a precautionary measure of last resort. Moreover, it must be imposed for the shortest
possible period of time.27 Article 9 (3) of the Covenant requires that the justification for
pretrial detention be analysed in a reasoned judicial decision in every case. The documents
examined show that this did not occur in the case of the Guevaras, who, furthermore, were
held for the purpose of being tortured before being placed at the disposal of the authorities.
With that in mind, the Working Group decides to refer this case to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment.
21 Human Rights Committee, general comment No. 32 (2007), para. 31.
22 Opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018 and No. 79/2018.
23 General comment No. 35 (2014), para. 18.
24 Opinion No. 42/2017, para. 36.
25 Opinions No. 6/2017, No. 30/2017, No. 49/2019, No. 60/2020 and No. 66/2020. See also Human
Rights Committee, general comment No. 35 (2014), para. 33.
26 A/HRC/30/37, para. 47 (a).
27 A/HRC/19/57, paras. 48–58; opinions No. 5/2019, para. 26 and No. 62/2019, paras. 27–29; and
A/HRC/37/6, paras. 118.31–118.33.
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86.
A fact that aggravates the situation and shows disregard for article 9 (3) of the
Covenant, which provides that release may be subject to guarantees to appear for trial, at any
other stage of the judicial proceedings and, should the occasion arise, for execution of the
judgment, is that the Guevaras have been denied the application of non-custodial measures
despite 23 requests to that effect submitted by their defence counsel and the general appeal
made to all States regarding the use of such measures during the COVID-19 pandemic.
87.
Because of the severity of the facts as submitted, which have received neither an
explanation nor a legal rebuttal from the Government, the Working Group concludes that the
detention of the Guevaras is arbitrary under category I.
Category III
88.
The Working Group notes that in the present case, the fundamental rules of due
process have not been observed. In particular, the excessive length of time during which the
Guevaras were held in pretrial detention deprived them of the guarantees of due process and
prevented them from challenging the lawfulness of their detention pursuant to 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.
89.
The Working Group wishes to emphasize that the authorities must ensure not only
that the initial arrest is in line with article 9 of the Covenant but also that any pretrial detention
is in compliance with it. The detention of the Guevaras was prolonged excessively despite
their defence counsel’s insistent requests in that regard. This means that the Guevaras were
effectively deprived of their right to defend themselves properly and contest the charges
against them. The Working Group is of the view that this constitutes a violation of their rights
under article 9 (4) of the Covenant.28
90.
Building on the right to be tried without undue delay in accordance with article 14 (3)
(c) of the Covenant, the Human Rights Committee has stated29 that any delay in bringing a
case to trial may only be justified by the complexity of the case or the conduct of the parties.
In addition, article 9 (1) of the Covenant provides that everyone has the right to liberty and
security of person. Moreover, article 3 of the Universal Declaration of Human Rights
reaffirms the right of everyone to liberty and security of person, as does article 7 (5) of the
American Convention on Human Rights.
91.
The Working Group is convinced that, while the Guevaras were granted access to
legal counsel to defend their rights – albeit after some delay, which amounts to a violation of
international law in and of itself – the counsel’s efforts were undermined. The Working
Group therefore decides to refer this case to the Special Rapporteur on the independence of
judges and lawyers.
92.
The Working Group further stresses that, according to claims made by the source that
have not been contested by the Government, the Guevaras’ defence counsel 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. Access to the case file was denied, in violation of the right
to a defence and due process, as well as principle 12, on equality before the courts, and
guidelines 11 and 13, on access to the case file, 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.30
93.
The source indicates that the executive branch exerted pressure on the judges involved
in the proceedings, who followed the government line. Furthermore, the source claims that
the Attorney General spread false information at press conferences to cover up for the
perpetrators. This serious accusation has not been refuted by the Government.
94.
The Government has not commented on or presented evidence to refute the source’s
claims that the authorities used mass media to publicly incriminate the Guevaras.
28 Opinion No. 49/2019, para. 60.
29 General comment No. 35 (2014), para. 38, and opinion No. 8/2017, para. 34.
30 A/HRC/30/37.
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13
95.
Moreover, according to information received from the source that has not been denied
by the Government, in an interview broadcast by the television channel SOi TV on 9 May
2012, a former Supreme Court justice allegedly stated that, the day after the death of the
public prosecutor, senior representatives of the Government met and declared that they had
a “green light” to end the Guevara brothers’ lives.
96.
The Working Group and the Human Rights Committee are of the view that authorities
should refrain from prejudging the outcome of a trial by abstaining from making public
statements affirming the guilt of the accused. In the present case, the Working Group
considers that the authorities have breached this obligation. The public presentation of the
Guevaras prior to their trial violated their right to be presumed innocent under articles 10 and
11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the Covenant. This
right has been recognized as a jus cogens norm by the Human Rights Committee in its general
comment No. 24 (1994, para. 8).
97.
Considering the allegations made, which have been neither refuted nor clarified by
the Government, the Working Group is convinced that the Guevaras did not have sufficient
time to prepare a defence. The source even states that the defendants repeatedly asked for an
explanation of the reason for their detention, but that the authorities neglected to answer. The
Government has not rebutted these claims. In view of these circumstances, the Working
Group is convinced that the trial did not meet the standard of a fair hearing established in
article 10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant.31
Nor did it comply with principle 12 and guidelines 11 and 13, on access to the case file and
equality of arms, 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.
98.
The source has refuted the Government’s assertions that the Guevaras have been
afforded all the guarantees and ordinary and special remedies provided for in the Venezuelan
legal system, stating that, at the time of the communication’s submission, a decision on the
appeal filed on 22 February 2019 was still pending.
99.
The Working Group notes with concern that the aforementioned violations of the
rights to due process, to be tried promptly by an impartial court and to judicial oversight are
aggravated by the fact that, according to the source, multiple requests for a review of the
custodial measure imposed were submitted but left to expire, as well as by the alleged lack
of jurisdiction of the counter-terrorism tribunal established on 22 November 2004, days after
the death of the public prosecutor and during the Guevaras’ detention. In view of the
circumstances, the Working Group decides to refer this case to the Special Rapporteur on the
promotion and protection of human rights and fundamental freedoms while countering
terrorism.
100.
The right to equality before the courts and to a fair trial is a key element of human
rights protection and serves as a procedural means to safeguard the rule of law.32 The purpose
of article 14 (1) of the Covenant is to ensure the proper administration of justice. To this end,
it guarantees a number of specific rights and, more generally, the principles of equal access
and equality of arms, with a view to ensuring that the parties to proceedings are treated
without discrimination.
101.
All these guarantees, particularly the presumption of innocence and equality before
the courts, which are enshrined in article 11 of the Universal Declaration of Human Rights
and article 14 (2) of the Covenant and which have also been recognized as peremptory norms
(jus cogens), have been violated in the case of the Guevaras. According to the Working
Group, whose conclusions in this regard are based on statements made by the source that
have not been refuted by the Government, this situation has occurred not only because of the
repeated refusal to accept legally filed appeals, but also because of the pretrial detention
31 Opinion No. 70/2019, para. 79, and Human Rights Committee, general comment No. 32 (2007), para.
33.
32 Human Rights Committee, general comment No. 32 (2007).
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measures to which the Guevaras were subjected and their trial without evidence by a special
counter-terrorism tribunal established after their arrest.
102.
The Working Group notes that the Government has explained, in its response, the
applicable legal norms and procedure under its national legal system and has insisted on its
strict compliance with international human rights standards; however, it has failed to put
forward sufficient evidence to justify the extensive delay in processing the constant requests
and appeals submitted by the Guevaras’ lawyers and the other violations of due process
affecting rights guaranteed by the articles of the Covenant and the Universal Declaration of
Human Rights mentioned throughout this analysis.
103.
In the light of the foregoing considerations, the Working Group concludes that, in the
case of the Guevaras, the non-observance of international standards relating to the right to a
fair and just trial, as recognized in articles 9–11 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.
Category V
104.
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 the Guevaras have been subjected to discrimination. For its part, the Government has
simply denied this claim. 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.
Concluding remarks
105.
The present case is one of a number of cases brought before the Working Group in
recent years concerning arbitrary detention in the Bolivarian Republic of Venezuela.33 In the
Working Group’s view, this is indicative of a systematic practice of depriving people of their
liberty while failing to respect their rights under international law. Widespread or systematic
imprisonment or other severe deprivation of liberty in violation of the rules of international
law may constitute crimes against humanity.34
106.
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.
Disposition
107.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Juan Bautista Guevara Rodríguez, Otoniel José
Guevara Pérez and Rolando Jesús Guevara Pérez, being in contravention of articles 3
and 8–11 of the Universal Declaration of Human Rights and article 14 (1), (2) and (3)
(a–c) of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories I and III.
33 Opinions No. 73/2020, No. 57/2020, No. 44/2020, No. 20/2020, No. 18/2020, No. 81/2019, No.
80/2019, No. 75/2019, No. 40/2019, No. 39/2019, No. 13/2019, No. 86/2018, No. 72/2018, No.
49/2018, No. 41/2018, No. 32/2018, No. 24/2018, No. 87/2017, No. 84/2017, No. 52/2017, No.
37/2017 and No. 18/2017.
34 Opinion No. 47/2012, para. 22.
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108.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of the Guevaras without delay
and bring it into conformity with the relevant international norms, including those set out in
the Universal Declaration of Human Rights and the Covenant.
109.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release the Guevaras immediately and accord them
an enforceable right to compensation and other reparations, in accordance with international
law.35 In the current context of the 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
the immediate release of the Guevaras.
110.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the
Guevaras and to take appropriate measures against those responsible for the violation of their
rights.
111.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the independence of judges and lawyers, the
Working Group on Enforced or Involuntary Disappearances, the Special Rapporteur on the
right of everyone to the enjoyment of the highest attainable standard of physical and mental
health, the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, and the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment, for appropriate action.
112.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
113.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether the Guevaras have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the Guevaras;
(c)
Whether an investigation has been conducted into the violation of the
Guevaras’ rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Bolivarian Republic of Venezuela with its
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
114.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
115.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
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.
35 Working Group on Arbitrary Detention, deliberation No. 10 (A/HRC/45/16, annex I).
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116.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.36
[Adopted on 16 November 2021]
36 Human Rights Council resolution 42/22, paras. 3 and 7.