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A/HRC/WGAD/2021/52

Opinion No. 52/2021 concerning Juan Bautista Guevara Rodríguez, Otoniel José Guevara Pérez and Rolando Jesús Guevara Pérez (Bolivarian Republic of Venezuela)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-11-19 · en UN

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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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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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.