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.22-01095(E)
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. 55/2021 concerning Juan Carlos Marrufo Capozzi and
María Auxiliadora Delgado Tabosky (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 15 January 2021 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Juan Carlos Marrufo Capozzi and María Auxiliadora Delgado Tabosky. The
Government replied to the communication on 16 April 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);
* Reissued for technical reasons on 23 June 2022.
** In accordance with para. 5 of the Working Group’s methods of work, Miriam Estrada-Castillo did not
participate in the discussion of the present case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/55*
General Assembly
Distr.: General
28 January 2022
English
Original: Spanish
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(e)
When the deprivation of liberty constitutes a violation of international law for
reasons 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).
Submissions
Communication from the source
4.
Juan Carlos Marrufo Capozzi is a national of both the Bolivarian Republic of
Venezuela and Italy and was born in 1970 (he was 49 years old at the time of his arrest). Mr.
Marrufo Capozzi retired from the National Guard at the rank of major and works as an
electrical engineer.
5.
María Auxiliadora Delgado Tabosky holds Venezuelan and Spanish nationality and
was born in 1974 (she was 45 years old at the time of her arrest). Ms. Delgado Tabosky has
a degree in management and is a manager and shareholder at a clinical laboratory.
6.
Mr. Marrufo Capozzi and Ms. Delgado Tabosky are married and habitually live in
Valencia, Carabobo State, in the Bolivarian Republic of Venezuela. The source states that
they were first arrested on 19 March 2019, then released and rearrested on 2 October 2019.
7.
According to the source, the first arrest occurred at their residence in Valencia, where,
following a search of the property, the officers, armed with rifles, proceeded to arrest Ms.
Delgado Tabosky and Mr. Marrufo Capozzi.
8.
Police report No. DGCIM-DEIPC-AP 215-2019 was drawn up and signed by the
arresting officers. In it, the officers recorded the objects, documents and vehicles that were
seized during the search of the home as items of possible interest to the criminal investigation.
9.
The source notes that the couple’s minor daughter was at home at the time and
witnessed the events. She stated that the officers turned the house upside down, throwing
things onto the floor and taking away valuables and the original title deed to the house, which
are not listed in any report.
10.
According to the source, neighbours outside the house began to ask the officers where
they were taking Mr. Marrufo Capozzi and Ms. Delgado Tabosky but were only told that the
officers were taking them for questioning and would return them shortly. The source
underscores that the officers never replied to the question of where they were taking Mr.
Marrufo Capozzi and Ms. Delgado Tabosky and simply put them in a white truck, leaving
their underage daughter alone at home. They were never returned home after questioning,
and two days later the family were informed that they were being held at the headquarters of
the Directorate General of Military Counter-Intelligence in Caracas.
11.
The source recounts that the second arrest took place in the early hours of 2 October
2019. The Deputy Director of the Directorate General of Military Counter-Intelligence had
Mr. Marrufo Capozzi and Ms. Delgado Tabosky brought to his office to inform them that,
after examination of their case, they had been found to bear no responsibility whatsoever for
the acts of which they had been suspected, and they were therefore free to go. As he knew
that Mr. Marrufo Capozzi and Ms. Delgado Tabosky lived in Valencia, he offered to have a
unit of the Directorate General of Military Counter-Intelligence on duty in Aragua State take
them as far as the Palo Negro tollbooth, an offer which Mr. Marrufo Capozzi and Ms.
Delgado Tabosky accepted.
12.
The source notes that when they arrived at the tollbooth, one of the officers signalled
to a white taxi that was parked there, got out of their vehicle to chat with the taxi driver and
returned saying that the taxi was available and would charge a given amount for the journey
to Valencia. Once on the road, Mr. Marrufo Capozzi asked the driver if he could borrow his
mobile phone to tell his family that they had been released and were on their way home.
13.
At the Valencia tollbooth, the taxi was pulled over by an officer of the Special Action
Forces of the Bolivarian National Police, who arrested Mr. Marrufo Capozzi and Ms.
Delgado Tabosky and took them to police headquarters in the city of San Diego. Mr. Marrufo
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Capozzi and Ms. Delgado Tabosky remained detained there until 8 p.m., when they were
brought before the Criminal Court of Valencia, which declared itself incompetent to hear the
case and ordered their immediate transfer to Caracas to be brought before Special Examining
Court No. 1.
14.
The source notes that Mr. Marrufo Capozzi and Ms. Delgado Tabosky had release
papers as early as 7 June 2019 (on which date they should have been released) and submits
that on 2 October 2019, the authorities orchestrated a fake release to absolve themselves of
responsibility for the failure by the Directorate General of Military Counter-Intelligence to
comply with the Court’s order.
15.
The source clarifies that the first arrest was carried out by officials of the Directorate
General of Military Counter-Intelligence in Caracas on the order of Special Examining Court
of First Instance No. 1 of the criminal court circuit of the Caracas Metropolitan Area. The
officers presented an arrest warrant.
16.
According to the submission, on 26 February 2019, acting prosecutor No. 67 and
acting prosecutor No. 83 for money laundering and financial and economic offences, which
both have national jurisdiction and come under the Public Prosecution Service, each sought
an arrest warrant for Mr. Marrufo Capozzi and Ms. Delgado Tabosky from the Court.
17.
The reason for the arrest put forward by the authorities was the alleged commission
of the offences of financing of terrorism and criminal association under articles 53 and 37 of
the Act on Organized Crime and the Financing of Terrorism.
18.
According to the source, the arrest warrant was requested on the basis of a trip that
Mr. Marrufo Capozzi and Ms. Delgado Tabosky took to the Dominican Republic at the end
of 2017 to visit Ms. Delgado Tabosky’s ailing father.
19.
Another basis for the request was a phone call received at the laboratory where Ms.
Delgado Tabosky worked in Valencia. The call was made by a person who also had phone
contact with a member of the military who was allegedly involved in the acts under
investigation. The source emphasizes that this telephone is a private device, which, though
bought by Ms. Delgado Tabosky, can be used by anyone to make or receive calls related to
the work of the laboratory.
20.
The request was also made on the basis of police reports by officials of the Directorate
General of Military Counter-Intelligence according to which Ms. Delgado Tabosky is related
to the person who allegedly financed the theft of weapons from Fort Paramacay military base
in Valencia in 2017 and the assassination attempt on the President that took place on Bolívar
Avenue in Caracas in August 2018.
21.
According to the source, after the period of 45 days established in article 236 (3) of
the Code of Criminal Procedure had elapsed, it became clear from the investigations
conducted that the charges brought by the prosecution were completely unfounded on both
counts and that, despite a number of inquiries, it could not be demonstrated that the accused
had engaged in any activity to finance acts of terrorism let alone associate in a criminal
enterprise.
22.
The source notes that, for this reason, on 6 May 2019, the above-mentioned public
prosecutors who had charged Mr. Marrufo Capozzi and Ms. Delgado Tabosky petitioned the
Court for a non-custodial preventive measure, given the lack of evidence justifying
preventive detention.
23.
On 6 May 2019, the Court ordered the conditional release of the accused, subject to
the preventive measures established in article 242 (3), (4) and (8) of the Code of Criminal
Procedure, namely: regular reporting to the criminal court circuit of the Caracas Metropolitan
Area every two weeks, a ban on leaving the country and a personal guarantee from two
guarantors.
24.
On 7 June 2019, personal guarantees were made on behalf of Mr. Marrufo Capozzi
and Ms. Delgado Tabosky; accordingly, the Court issued orders No. 184-19 and No. 185-19,
addressed to the Directorate General of Military Counter-Intelligence, ordering the release of
the accused. The source notes that this conditional release never took place.
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25.
According to the source, at the time of their faked release in October 2019, Mr.
Marrufo Capozzi and Ms. Delgado Tabosky were transferred to premises of the Special
Action Forces in Valencia, Carabobo State. They are currently being held at the headquarters
of the Directorate General of Military Counter-Intelligence in Boleita Norte, Caracas, some
167.3 kilometres and a two-hour drive from the city where their relatives live. The source
specifies that Mr. Marrufo Capozzi and Ms. Delgado Tabosky are being held in communal
cells in the basement of a military facility usually used for defendants in military proceedings.
They have been detained for a year and 10 months.
26.
The source notes that in the second arrest warrant the authorities alleged that Mr.
Marrufo Capozzi and Ms. Delgado Tabosky were involved in the commission of the
following offences: treason, defined in and punishable under article 128 of the Criminal
Code; attempted assassination of the President of the Republic, defined in and punishable
under article 405, read in conjunction with article 406 (3) (a); attempted murder with
malicious intent and senseless motive against police personnel, defined in and punishable
under article 405, read in conjunction with article 406 (2) of the Criminal Code; and terrorism
and criminal association, defined in and punishable under articles 52 and 37 of the Act on
Organized Crime and the Financing of Terrorism.
27.
The source notes that the second arrest warrant does not explain how, when or where
the accused participated in the events. The authorities have not produced a single piece of
evidence that Mr. Marrufo Capozzi and Ms. Delgado Tabosky were involved in the
commission of these offences.
Allegations of arbitrary detention
28.
The source considers that the detention of Mr. Marrufo Capozzi and Ms. Delgado
Tabosky was arbitrary because the prosecutorial authorities have not provided lawful
evidence that Mr. Marrufo Capozzi and Ms. Delgado Tabosky participated in the
aforementioned events, as the two petitions for deprivation of liberty and the indictment
merely list a series of elements that in no way tie the accused to the events that triggered the
investigation.
29.
The source contends that the deprivation of liberty has no basis in the Constitution or
the law since the provisions governing the restriction of personal liberty require that certain
requirements to be expressly met, including those in article 250 of the Code of Criminal
Procedure, and in this case those requirements were not met.
30.
The source also contends that the detention of Mr. Marrufo Capozzi and Ms. Delgado
Tabosky flows from a vendetta by politicians seeking to suppress and punish opponents,
including Ms. Delgado Tabosky, whose relative living in the United States of America, they
claim, is conspiring to undermine the State institutions of the Bolivarian Republic of
Venezuela.
31.
In addition, the source notes that the international rules relating to the right to a fair
and impartial trial, specifically articles 9 and 10 of the Universal Declaration of Human
Rights and, with regard to States parties, articles 9 and 14 of the Covenant, have been partially
or wholly violated.
32.
According to the source, the investigation was biased and was conducted by military
officials without proper oversight by the prosecutorial authorities. Moreover, the proceedings
have been obviously prolonged, since the couple’s release has been ordered but the military
body holding them in custody has failed to comply with the order, and more than a year after
the indictment there has been no preliminary hearing, and the Court has not ruled on the
defence’s application for an alternative to detention.
33.
The source also notes that Mr. Marrufo Capozzi and Ms. Delgado Tabosky were
deprived of their liberty for discriminatory reasons related to the political stance of Ms.
Delgado Tabosky’s relative living in Miami.
34.
The source then enumerates the steps taken at the domestic level, in particular the
judicial and administrative steps taken to establish the lawfulness of Mr. Marrufo Capozzi’s
and Ms. Delgado Tabosky’s detention.
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35.
The source notes that repeated applications were made to the Court for it to enforce
the release order it issued in May 2019 for Mr. Marrufo Capozzi and Ms. Delgado Tabosky
but that the Court took no action whatsoever to ensure that the Directorate General of Military
Counter-Intelligence executed the order.
36.
In addition, according to the source, a remedy of amparo, in the form of a writ of
habeas corpus, was filed with Examining Court No. 10 with the aim of compelling the
Directorate General of Military Counter-Intelligence to release the accused; the Court took
no action on the filing.
37.
The decision to detain them for a second time was appealed on the grounds that it was
based on the same elements used to justify the first custodial measure, even though, in that
situation, the Public Prosecution Service had requested their release owing to a lack of
sufficient evidence that they had committed or been involved in the acts of which they were
accused. As of when the communication was received from the source, no action had been
taken on that appeal.
38.
In June 2020, a request for a less strict, non-custodial measure was filed on the basis
of the couple’s serious health conditions, but the Court has not ruled on the request. A number
of attempts have been made to get them transferred to a public or private medical centre with
the requisite specialists and instruments to treat their medical conditions, but to no avail.
39.
According to the source, emergency medical appointments for the detainees were
scheduled on 21 December 2020, as their health had been declining for several months. The
lawyers for Mr. Marrufo Capozzi and Ms. Delgado Tabosky followed all the formal steps to
request a transfer from the Court, and the Court’s transfer order was transmitted to the
detention centre of the Directorate General of Military Counter-Intelligence. However, none
of the appointments could be kept because the detention centre claimed that the prosecutor’s
order could not be found, even though it had been transmitted over a week in advance to
ensure that the transfer would take place. The source submits that Mr. Marrufo Capozzi and
Ms. Delgado Tabosky are being denied their right to health.
Response from the Government
40.
On 15 January 2021, the Working Group transmitted the source’s allegations to the
Government. The Working Group requested the Government to provide detailed information
about the case involving Mr. Marrufo Capozzi and Ms. Delgado Tabosky by 16 March 2021.
In addition, the Working Group requested the Government to safeguard Mr. Marrufo
Capozzi’s and Ms. Delgado Tabosky’s physical and mental integrity.
41.
On 10 March 2021, the Government requested an extension of this deadline and was
given until 16 April 2021 to reply. The Government submitted its response on 16 April 2021.
42.
The Government notes that Mr. Marrufo Capozzi and Ms. Delgado Tabosky are the
subject of two criminal proceedings in connection with their alleged commission of serious
offences duly classified as such under domestic law.
43.
The first criminal investigation relates to their alleged involvement in the organization
of various conspiracies against the democratic institutions of the Bolivarian Republic of
Venezuela. According to the investigations conducted by the Public Prosecution Service and
criminal investigation bodies, Mr. Marrufo Capozzi and Ms. Delgado Tabosky were
allegedly in phone contact and took part in meetings with members of the active reserve of
the Bolivarian National Armed Forces to plan and carry out attacks on military facilities and
on civilian and military authorities of the Bolivarian Republic of Venezuela.
44.
Based on the findings of the investigation, on 26 February 2019, the Public
Prosecution Service petitioned Special Examining Court of First Instance No. 1 with national
jurisdiction over cases of terrorism-related offences to issue an arrest warrant for Mr. Marrufo
Capozzi and Ms. Delgado Tabosky on the charges of financing of terrorism and criminal
association, defined in and punishable under the Organized Crime and Financing of
Terrorism Act.
45.
On 14 March 2019, the Public Prosecution Service also petitioned the Court to order
the confiscation of all assets and property, a freeze on accounts and a ban on alienating or
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encumbering assets and property. In response to the petition, the Court, on the basis of a
reasoned decision, issued an arrest warrant in accordance with article 236 of the Code of
Criminal Procedure.
46.
According to the Government, the Court agreed to notify the Directorate General of
Military Counter-Intelligence of the arrest warrant so that it, as a police investigation body,
could proceed to arrest Mr. Marrufo Capozzi and Ms. Delgado Tabosky, in accordance with
article 113 of the Code of Criminal Procedure and articles 3 to 5 of the Regulations on the
Directorate General of Military Counter-Intelligence.
47.
On 19 March 2019, officials of the Directorate General of Military Counter-
Intelligence detained Mr. Marrufo Capozzi and Ms. Delgado Tabosky pursuant to the Court’s
order. At the time of the arrest, the officials informed Mr. Marrufo Capozzi and Ms. Delgado
Tabosky of the reasons for their arrest and of their rights, in keeping with the Constitution
and the Covenant, as the source acknowledged in its submission.
48.
On 22 March 2019, Mr. Marrufo Capozzi and Ms. Delgado Tabosky were brought
before the Court for an arraignment hearing. Following the hearing, the Court confirmed their
detention, ordering their remand in pretrial detention at the premises of the Directorate
General of Military Counter-Intelligence.
49.
On 6 May 2019, the Public Prosecution Service petitioned the Court to review the
pretrial detention of Mr. Marrufo Capozzi and Ms. Delgado Tabosky, taking into account the
fact that, at that point, there was insufficient evidence to declare the investigation definitively
closed. The investigation therefore remained open with a view to conducting further inquiries
and determining any liability. In response to the petition, the Court substituted a non-
custodial preventive measure for the pretrial detention.
50.
The Government notes that the second criminal proceeding against Mr. Marrufo
Capozzi and Ms. Delgado Tabosky relates to their alleged involvement in the thwarted
assassination attempt on 4 August 2018, in the vicinity of Avenida Bolívar in Caracas, during
the celebration of the anniversary of the Bolivarian National Guard, which was attended by
the highest officials of the State and representatives of the diplomatic corps accredited in the
country. On that occasion, as the President of the Republic was delivering a speech, he was
interrupted by the detonation of two explosive devices on two remotely operated drones.
Several members of the military were wounded in the attack.
51.
According to the Government, as part of the investigation into the thwarted
assassination attempt, on 20 September 2019, the Public Prosecution Service collected items
of criminal interest, including expert opinions, that gave reason to believe that Mr. Marrufo
Capozzi and Ms. Delgado Tabosky had been actively involved in the events of 4 August
2018. The evidence also includes documents on the so-called “Operation Constitution”,
explicit videos, and phone communications with the instigators and perpetrators of the events.
52.
Based on the findings of the investigation, on 30 September 2019, the Public
Prosecution Service petitioned Special Examining Court of First Instance No. 1 with national
jurisdiction over cases of terrorism-related offences for an arrest warrant for Mr. Marrufo
Capozzi and Ms. Delgado Tabosky for the alleged commission of the offences of treason,
attempted assassination of the President of the Republic and attempted murder with malicious
intent and senseless motive, all defined in and punishable under the Criminal Code and the
offences of terrorism and criminal association provided for in the Organized Crime and
Financing of Terrorism Act.
53.
On 1 October 2019, the Court issued the arrest warrants for Mr. Marrufo Capozzi and
Ms. Delgado Tabosky as requested by the Public Prosecution Service (warrants No. 037-16
and No. 036-19) for the alleged commission of the above-mentioned offences.
54.
On 2 October 2019, Mr. Marrufo Capozzi and Ms. Delgado Tabosky were detained
by members of the Special Action Forces of the Bolivarian National Police in Valencia,
pursuant to the arrest warrant issued by the Court. At the time of the arrest, the officers
informed Mr. Marrufo Capozzi and Ms. Delgado Tabosky of their rights and the reasons for
their arrest, in keeping with the Constitution and the Covenant. The pair subsequently
underwent a medical examination to assess their state of health.
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55.
According to the Government, the arraignment hearing of Mr. Marrufo Capozzi and
Ms. Delgado Tabosky took place on 3 October 2019 and all due process guarantees and the
legitimate right to a defence were respected. The Court remanded them in pretrial detention
at the premises of the Directorate General of Military Counter-Intelligence.
56.
On 15 November 2019, the Public Prosecution Service formally submitted to the
Court the indictment against Mr. Marrufo Capozzi and Ms. Delgado Tabosky regarding the
alleged commission of treason, defined in and punishable under article 128 of the Criminal
Code; attempted assassination of the President of the Republic, define in and punishable
under article 405, read in conjunction with article 406 (3) (a) and article 80 of the Criminal
Code; attempted murder with malicious intent and senseless motive, defined in and
punishable under article 405, read in conjunction with article 406 (2) and article 80 of the
Criminal Code; terrorism, defined in and punishable under article 52 of the Act on Organized
Crime and the Financing of Terrorism; and criminal association, defined in and punishable
under article 37 of the Act.
57.
On 9 February 2021, the preliminary hearing was held before Special Examining
Court of First Instance No. 1. At the hearing, the judge dismissed the charges of attempted
assassination and attempted murder with malicious intent and senseless motive and partially
admitted the evidence presented by Mr. Marrufo Capozzi’s and Ms. Delgado Tabosky’s
defence. However, the Court upheld the custodial measure imposed on Mr. Marrufo Capozzi
and Ms. Delgado Tabosky and ordered that they stand trial in accordance with article 314 of
the Code of Criminal Procedure.
58.
Mr. Marrufo Capozzi and Ms. Delgado Tabosky are currently awaiting the start of the
public trial. Both individuals are deprived of their liberty at the premises of the Directorate
General of Military Counter-Intelligence. Their conditions of detention are in keeping with
applicable international standards and domestic legal provisions, including with regard to
access to medical care. The conditions at the premises of the Directorate General of Military
Counter-Intelligence were observed by the Office of the United Nations High Commissioner
for Human Rights during visits conducted on 11 and 12 September and 7 October 2020.
59.
During their detention, the Directorate General of Military Counter-Intelligence has
ensured that Mr. Marrufo Capozzi and Ms. Delgado Tabosky receive the medical care they
need. They have been transferred on a number of occasions to public or private health centres
to be assessed, as the defence acknowledged during the proceedings.
60.
The Government contends that the detention of Mr. Marrufo Capozzi and Ms.
Delgado Tabosky cannot be considered arbitrary under category I because it was ordered on
the basis of article 44 of the Constitution and articles 236 et seq. of the Code of Criminal
Procedure, as well as the Universal Declaration of Human Rights and the Covenant.
61.
In the present case, the detentions stemmed from arrest warrants duly issued by a
competent court, on the basis of a reasoned decision, in response to petitions by the Public
Prosecution Service motivated by the findings of the criminal investigation. In each case, the
Public Prosecution Service argued, and the Court concurred, that: (a) a punishable act
warranting deprivation of liberty, and in relation to which the statute of limitations had not
expired, had been committed; (b) there was substantiated evidence that the accused
perpetrated, or participated in, the commission of a punishable act; and (c) it could be
reasonably presumed, having regard to the specific circumstances of the case, that the
accused might abscond or obstruct efforts to establish the truth in respect of a specific element
of the investigation, all of the above in keeping with article 236 of the Code of Criminal
Procedure.2
62.
The fact that the source refers to a provision other than the one applied by the Court
in this case does not imply that the detention lacks legal basis. The Human Rights Committee
has stated that:
2 According to the source’s submission, the criteria justifying a custodial measure are enumerated in
article 250 of the Code of Criminal Procedure, but 236 is the correct article. Article 250 regulates the
review and revision of custodial measures.
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The Committee recalls its jurisprudence according to which it is incumbent upon
the courts of the State party to review facts and evidence in each case, or the
application of domestic legislation, unless it can be shown that such evaluation
or application was clearly arbitrary or amounted to a manifest error or denial of
justice.3
63.
Furthermore, the detention cannot be considered arbitrary under category III because
every stage of the criminal proceedings has been conducted in strict compliance with due
process guarantees and the right to a defence enshrined in articles 10 and 11 of the Universal
Declaration of Human Rights and articles 9 and 14 of the Covenant and without any
infringements of applicable international standards of such seriousness as to render the
deprivation of liberty arbitrary.
64.
The source alleges that the criminal investigation was conducted in a biased manner
and without proper oversight by the Public Prosecution Service. This is untrue, as at all times
the Public Prosecution Service conducted the investigation in strict compliance with the
provisions of domestic law. It even petitioned the Court to change the custodial measure in
view of the fact that, at that point, there was insufficient evidence to definitively conclude
the investigation relating to the charges of financing of terrorism and criminal association.
65.
Moreover, Mr. Marrufo Capozzi and Ms. Delgado Tabosky had legal representation
at all times, thereby ensuring that their rights and interests were defended before the
competent judicial authorities. In addition, the defence sought all the remedies under
Venezuelan law that it considered necessary.
66.
The Government contends that the delay in holding the preliminary hearing was due
to a number of factors: (a) the coronavirus disease (COVID-19) pandemic, which initially
paralysed all judicial activities; (b) the number of accused persons and victims, which made
the proceedings especially complex; and (c) the postponement of several hearings owing to
the absence of either the victims or their defence.
67.
The detention of Mr. Marrufo Capozzi and Ms. Delgado Tabosky does not constitute
a violation of international law for reasons of discrimination, as they were taken into custody
for the alleged commission of crimes defined in Venezuelan law and on the basis of the
above-mentioned evidence, without regard to their personal situation or status. Therefore,
their detention cannot be classified as arbitrary under category V.
68.
In that connection, the Government reiterates that various avenues of investigation
provided reason to believe that Mr. Marrufo Capozzi and Ms. Delgado Tabosky participated
in the assassination attempt on 4 August 2018. The Government underscores that it is not the
individuals’ “political stance” that gave rise to their detention, as claimed by the source, but
rather various elements pointing to them as the alleged perpetrators of serious offences.
69.
In the criminal proceedings against Mr. Marrufo Capozzi and Ms. Delgado Tabosky,
there are other persons who are also deprived of their liberty, including several who do not
share their “political stance”. For example, the other detainees in this case include a Major-
General who was Director of Internal Operations in the Bolivarian National Guard and had
important government responsibilities.
70.
The source’s allegation of persecution on political grounds is unfounded, especially
considering the fact that both Mr. Marrufo Capozzi and Ms. Delgado Tabosky were granted
alternatives to deprivation of liberty, at the request of the Public Prosecution Service, unlike
other defendants in the case who are under criminal investigation and remain deprived of
their liberty.
Additional comments from the source
71.
The source argues that the judicial proceedings against Mr. Marrufo Capozzi and Ms.
Delgado Tabosky are unconstitutional insofar as they violate the principle of legal reserve
enshrined in articles 156, 187, 202, 203 and 236 of the Constitution, given that the Code of
3 CCPR/C/103/D/1800/2008, para. 7.4.
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9
Criminal Procedure was not promulgated by the legislature (the National Assembly), but
rather by a presidential decree-law dated 15 June 2012.
72.
The source refers to a letter from the Directorate General of Military Counter-
Intelligence (provided by the Government), which begins with: “It is my honour to write to
you, and I take this opportunity to convey warm Bolivarian, revolutionary, socialist, patriotic,
anti-imperialist and deeply Chávesian greetings.” These words demonstrate that those
responsible for safeguarding and defending the sovereignty of the Republic actually perform
a biased and political function. In the source’s view, the National Armed Forces are currently
a political element, in contravention of article 328 of the Constitution.
73.
According to the source, the procedure by which Mr. Marrufo Capozzi and Ms.
Delgado Tabosky are being kept behind bars can be summarized in two phases. The first
relates to the arrest on 19 March 2019. The second relates to the “simulated” release and
rearrest carried out on 2 October 2019, when they were made to believe that officials of the
Directorate General of Military Counter-Intelligence were taking them home to Valencia, but
in fact they remained in custody and were never released. Mr. Marrufo Capozzi and Ms.
Delgado Tabosky remained unlawfully detained for a further 4 months and 26 days after an
alternative to custodial preventive measures was ordered on 6 May 2019.
74.
On 30 September 2019, the public prosecutors requested a new arrest warrant, even
though it is not possible to seek authorization to arrest individuals already deprived of their
liberty.
75.
On 2 October 2019, the authorities took Mr. Marrufo Capozzi and Ms. Delgado
Tabosky as far as Palo Negro under the false pretence of driving them home, and then put
them in a prearranged taxi. As they emerged from the tunnel, they were intercepted by
members of the Special Action Forces, who, without asking to see any identification
documents, stated that they were executing an arrest warrant issued by the same court that
had ordered their release.
76.
On 3 October 2019, pursuant to the arrest warrant issued on 30 September 2019, Mr.
Marrufo Capozzi and Ms. Delgado Tabosky were brought before Special Examining Court
of First Instance No. 1 with national jurisdiction over cases of terrorism-related offences.
According to the source, the Court rescinded its own decision of 6 May 2019 without
explanation.
77.
The source argues that the evidence in the case was obtained unlawfully, since the
officials did not observe minimum chain of custody rules, thereby violating article 11 of the
Code of Criminal Procedure and other procedural rules. Furthermore, the items confiscated
during the arrest of the accused on 19 March 2019 were not returned to them. The source
adds that both the first order, pursuant to which they were taken into custody on 22 March
2019, and the second order, of 3 October 2019, are based on the same evidence.
78.
All of these errors were detailed in the appeal filed by the defence on 10 October 2019,
but the competent Court of Appeal made no ruling.
79.
The preliminary hearing was held on 9 February 2021, or 1 year, 2 months and 24
days after the issuance of the indictment. The source points out that, during this period, the
preliminary hearing was repeatedly postponed for a variety of reasons. Only one of the
postponements was attributable to the defence counsel, who, after waiting for five hours at
the courthouse, decided to leave. All the other postponements are attributable to the Court or
the Public Prosecution Service. Special Examining Court of First Instance No. 1 of the
Caracas Metropolitan Area with national jurisdiction over cases of terrorism-related offences,
which is hearing the case, still has not set a date for the public trial.
80.
Lastly, Mr. Marrufo Capozzi and Ms. Delgado Tabosky have been held at the
premises of the Directorate General of Military Counter-Intelligence, which is not a prison
and does not possess the features of one. Following the country visit by the United Nations,
the conditions of detention improved somewhat. However, under the leadership of a new
chief, conditions at the centre have now begun to deteriorate. It was not until nearly two years
after their arrest that Mr. Marrufo Capozzi and Ms. Delgado Tabosky were assessed by
medical specialists. They were examined by doctors from the military hospital in Caracas
who, lacking the instruments and means needed for the pair’s clinical picture, recommended
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that they be transferred. That is how authorization was obtained from Special Examining
Court No. 1 for officials of the Directorate General of Military Counter-Intelligence to take
the pair to the El Ávila clinic. The medical assessments show a deterioration of the health of
both detainees.
Discussion
81.
The Working Group thanks both parties for their cooperation.
82.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations. Mere assertions
that lawful procedures have been followed are not sufficient to rebut the source’s allegations.4
83.
The submission refers to two criminal proceedings:
(I)
In the first proceedings, both individuals were accused of participating in the
preparation of actions against the democratic institutions of the Bolivarian Republic
of Venezuela. Those actions include phone calls and meetings with officials of the
Bolivarian National Armed Forces for the purpose of planning and carrying out
attacks against civilian and military authorities. Both were arrested on 19 March 2019
for the offences of financing of terrorism and criminal association. At the request of
the Public Prosecution Service, a judicial order was issued on 6 May 2019 authorizing
their conditional release while additional investigations were conducted. As analysed
below, the parties’ submissions were inconsistent as to whether the release actually
took place;
(II)
In the second proceedings, both individuals are alleged to have participated in
the attempted assassination of the President on 4 August 2018, in which an attack
using remotely operated drones was launched during the anniversary celebration of
the Bolivarian National Guard. Both individuals were arrested on 2 October 2019 for
various offences, including treason, attempted murder, terrorism and criminal
association. Some of the charges were subsequently dismissed. Both individuals
remain in pretrial detention at the premises of the Directorate General of Military
Counter-Intelligence.
Category I
84.
The source claims that Mr. Marrufo Capozzi and Ms. Delgado Tabosky were arrested
on 19 March 2019 by officials of the Directorate General of Military Counter-Intelligence,
who showed an arrest warrant. When the neighbours asked where they were being taken, the
officials replied that they were being taken in for questioning, but did not specify where. Mr.
Marrufo Capozzi and Ms. Delgado Tabosky were taken away in a white truck and did not
return after questioning. Two days later, their family was informed that they were being held
at the headquarters of the Directorate General of Military Counter-Intelligence in Caracas.
85.
In its response, the Government noted that, on 19 March 2019, officials of the
Directorate General of Military Counter-Intelligence arrested Mr. Marrufo Capozzi and Ms.
Delgado Tabosky pursuant to a judicial order. At the time of the arrest, the officials informed
Mr. Marrufo Capozzi and Ms. Delgado Tabosky of their rights and the reasons for their arrest.
On 22 March 2019, they were brought before a court, which ordered their detention. The
Government did not specifically address or deny the allegations regarding the manner in
which the two individuals were removed from their home or explain the nature or place of
detention during the period before they were brought before the court.
86.
Although Mr. Marrufo Capozzi and Ms. Delgado Tabosky were detained pursuant to
an arrest warrant, the Working Group considers that their ensuing deprivation of liberty, from
19 to 21 March 2019, amounted to enforced disappearance.5 Both individuals were deprived
of their liberty against their will, with the involvement of government officials, who appear
4 A/HRC/19/57, para. 68.
5 A/HRC/16/48/Add.3, para. 22.
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to have refused to divulge their whereabouts during that period,6 telling the neighbours only
that they were being taken in for questioning. Enforced disappearance contravenes several
provisions of the Covenant, including articles 9 and 14, and constitutes a particularly
aggravated form of arbitrary detention.7 The Working Group refers the present case to the
Working Group on Enforced or Involuntary Disappearances.
87.
In its response, the Government acknowledged that Mr. Marrufo Capozzi and Ms.
Delgado Tabosky appeared before a court on 22 March 2019, three days after their arrest.
Under article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge must
be brought promptly before a judge. Forty-eight 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 be justified under the circumstances.8
The Government has not put forward any explanation for the delay. Mr. Marrufo Capozzi
and Ms. Delgado Tabosky were not brought before a judge promptly, in violation of article
9 (3) of the Covenant, even though the Government cites article 236 of the Code of Criminal
Procedure, which requires that suspects be brought before a judge within 48 hours of arrest.
88.
Furthermore, although both individuals were brought before a court on 22 March
2019, the Working Group considers it unlikely that this was a genuine opportunity to
effectively contest the legal basis of their detention, given that they were disappeared prior
to being brought before the court, with limited opportunity to prepare or to consult counsel.
The Working Group considers that Mr. Marrufo Capozzi’s and Ms. Delgado Tabosky’s right
to challenge the lawfulness of their detention under article 9 (3) and (4) of the Covenant, as
well as their right to an effective remedy under article 8 of the Universal Declaration of
Human Rights and article 2 (3) of the Covenant, were violated. In addition, they were placed
outside the protection of the law, in violation of article 6 of the Universal Declaration of
Human Rights and article 16 of the Covenant.
89.
The source also claims that, on 6 May 2019, a judicial decision was issued ordering
their conditional release, with the requirement that they report to the authorities every two
weeks, a ban on leaving the country and the payment of a personal guarantee by two
guarantors. According to the source, the latter condition was fulfilled on 7 June 2019 and the
Court sent letters to the Directorate General of Military Counter-Intelligence ordering the
release of both individuals. However, the release order was never carried out. Instead, on 2
October 2019, the Directorate General of Military Counter-Intelligence “simulated” the
release of the two individuals, offering to take them to the Palo Negro tollbooth and then
putting them in a taxi to drive them to their home in Valencia. On arrival at the Valencia
tollbooth, both individuals were arrested by the Special Action Forces.
90.
In its response, the Government refers to the judicial order of 6 May 2019, pointing
out that it had been requested by the Public Prosecution Service on the grounds that there
was insufficient evidence to support the case against the accused at that time. The
Government also states that the accused were subsequently detained pursuant to arrest
warrants requested on 30 September and issued on 1 October 2019.9 On 2 October 2019, the
accused were arrested in Valencia by agents of the Special Action Forces pursuant to arrest
warrants and were informed of their rights and the reasons for their arrest. On 3 October
2019, they were brought before a court, which ordered that they be remanded in custody at
the premises of the Directorate General of Military Counter-Intelligence.
91.
The Working Group considers the source’s version of the events to be credible, since
the source provided specific examples of the accused’s failed efforts to have the release order
of 6 May 2019 enforced. These efforts include filing for the remedies of amparo and habeas
corpus with Examining Court No. 10, which never processed the applications. The fact that
both individuals were arrested pursuant to arrest warrants issued on 1 October 2019 does not
mean that they were not still detained at the time of issuance of those warrants. It is worth
6 Ibid., para. 21; A/HRC/47/55, paras. 14–15; and CAT/C/VEN/CO/3-4, para. 9.
7 Human Rights Committee, general comment No. 35 (2014), para. 17; and opinions No. 41/2020, para.
61; and No. 11/2020, para. 41.
8 Human Rights Committee, general comment No. 35 (2014), para. 33; and CAT/C/VEN/CO/3-4, para.
9.
9 The Government provided the order number in both cases.
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noting that the Government does not indicate the date or circumstances of Mr. Marrufo
Capozzi’s and Ms. Delgado Tabosky’s release from the custody of the Directorate General
of Military Counter-Intelligence, although this information should be available to the
authorities.
92.
When an order is issued for a person’s release, including conditional release, and the
person is not in fact released, any period of detention following the issuance of the release
order lacks legal basis.10 Maintaining a person in detention once release has been ordered by
the court competent to exercise control over the legality of detention is a violation of article
9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant and renders
the detention arbitrary. Consequently, the detention of Mr. Marrufo Capozzi and Ms. Delgado
Tabosky from 7 June 2019, when the conditions for release were met, until 2 October 2019,
lacked legal basis.
93.
In addition, the Working Group considers that the arrest warrants issued on 1 October
2019 cannot have constituted a legal basis for the detention of Mr. Marrufo Capozzi and Ms.
Delgado Tabosky from 2 October 2019 onward. Both individuals were still in custody when
the warrants were requested and issued. Therefore, the arrest warrants appear to have been
issued on the basis of inaccurate information indicating that the suspects were free. The
manner in which the arrest warrants were allegedly executed on 2 October 2019 also raises
serious concerns as to whether the requisite procedures for ensuring that a detention has legal
basis were followed. Both individuals were arrested after they were supposedly led to believe
that they were free. Moreover, their release was allegedly simulated to cover up the failure
of the authorities to comply with the prior release order. The arrest on 2 October 2019
therefore cannot be considered to be in line with article 9 (1) of the Covenant, according to
which no one shall be deprived of his or her liberty except on such grounds and in accordance
with such procedure as are established by law.11
94.
For these reasons, the detention of Mr. Marrufo Capozzi and Ms. Delgado Tabosky,
from 19 March 2019 to this day, is arbitrary under category I.
Category III
95.
The source claims that the detention of Mr. Marrufo Capozzi and Ms. Delgado
Tabosky is arbitrary in that the authorities have not adduced sufficient evidence to convict
them. The source argues that the detention was not in line with the Code of Criminal
Procedure and was based on unlawfully obtained evidence. The Government recalls that it is
the remit of the domestic courts to assess the facts and evidence and apply domestic law,
except where such assessment or application has been demonstrated to be arbitrary. The
Government points out that the requirements of the Code of Criminal Procedure and other
domestic laws were respected.
96.
While the Working Group may determine whether procedures comply with
international fair trial standards, it may not act as a domestic court or an appellate body or
assess whether the evidence brought against an accused is sufficient or whether the
authorities complied with domestic legislation.12 Consequently, the Working Group is not in
a position to determine whether international law was violated in relation to the allegedly
insufficient evidence, how that evidence was obtained or whether the arrest and detention of
the two individuals met domestic requirements.
97.
The source also claims that there have been procedural delays. According to the
source, the defence filed an appeal on 10 October 2019, but the Court of Appeal has yet to
render judgment. Furthermore, the preliminary hearing in the second case was not held until
9 February 2021, 15 months after the charges were laid. In its response, the Government
claims that the delay in holding the preliminary hearing was due to several factors, including
the COVID-19 pandemic, which hampered the administration of justice; the number of
10 Opinions No. 44/2020, para. 56; No. 27/2020, para. 54; and No. 8/2020, para. 53; Human Rights
Committee, general comment No. 35 (2014), paras. 11 and 22.
11 The source also submits that when the Court issued the arrest warrants, it rescinded, without
explanation, its previous decision of 6 May 2019 to release the accused.
12 Opinions No. 46/2020, para. 62; and No. 64/2019, para. 89.
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13
defendants and victims; the complexity of the proceedings; and the postponement of hearings
owing to the absence of victims or defence counsel.13 In its additional comments, the source
notes that the preliminary hearing was repeatedly postponed for various reasons, of which
only one was attributable to the defence counsel, who, after waiting for five hours at the
courthouse, decided to leave. The other delays were attributable to the Court and the Public
Prosecution Service. No trial date has been set.
98.
The reasonableness of any delay in bringing a case to trial must be assessed in the
circumstances of each case, taking into account the complexity of the case, the conduct of
the accused and the manner in which the matter was handled by the authorities.14 This
guarantee relates not only to the time between the formal charging of the accused and the
time by which a trial should commence, but also the time until the final judgement on appeal.
All stages of criminal proceedings, whether in first instance or on appeal, must take place
without undue delay.15
99.
States must take measures during public health emergencies, such as the COVID-19
pandemic, to ensure that judicial procedures can continue, including by holding hearings
online or telephonically, and they must consider alternatives to deprivation of liberty.16 In the
present case, both proceedings involved complex allegations. However, the prolonged first
proceedings, which lasted two and a half years from the arrest warrant request on 26 February
2019, and the two-year delay in bringing the second case to trial, following the arrest warrant
request of 30 September 2019, are unreasonable. While the source acknowledges that one of
the postponements was attributable to the defence, that postponement alone does not excuse
the lengthiness of the two proceedings.
100.
The Working Group considers that the delays in both proceedings amount to a denial
of the right of Mr. Marrufo Capozzi and Ms. Delgado Tabosky to be tried within a reasonable
time frame and without undue delay, in keeping with articles 9 (3) and 14 (3) (c) of the
Covenant. They have remained in custody and uncertain of their fate in two separate criminal
proceedings for an unacceptably long time.
101.
Furthermore, the detention of both individuals, despite the issuance of a release order
on 6 May 2019, violated their right to be presumed innocent under article 11 (1) of the
Universal Declaration of Human Rights and article 14 (2) of the Covenant.17 The Working
Group also considers that the deterioration of both individuals’ health has adversely affected
their ability to take part in their own defence at trial.
102.
The Working Group concludes that the violations of the right to a fair trial are of such
gravity as to give the detention of Mr. Marrufo Capozzi and Ms. Delgado Tabosky an
arbitrary character under category III.
Category V
103.
The source claims that Mr. Marrufo Capozzi and Ms. Delgado Tabosky were detained
for discriminatory reasons due to the political opinions of a relative of Ms. Delgado Tabosky
who lives in the United States of America. That relative allegedly conspired from abroad to
attack institutions of the Bolivarian Republic of Venezuela. According to the source, the aim
of the detention in this case was to suppress and punish political opponents.
104.
The Government contends that it was the findings of the investigation that provided a
solid basis for the charges against both individuals, rather than any political position they
may have held. The Government reiterates that, at the request of the Public Prosecution
Service, a conditional release order was issued for Mr. Marrufo Capozzi and Ms. Delgado
Tabosky, unlike the other persons accused in the case, who remain detained.
13 The Government provided a copy of the defence’s motion to postpone.
14 Human Rights Committee, general comment No. 35 (2014), para. 37; and general comment No. 32
(2007), para. 35.
15 Human Rights Committee, general comment No. 32 (2007), para. 35.
16 A/HRC/45/16, annex II, paras. 20–21; and A/HRC/47/55, paras. 29, 36 and 37.
17 Opinion No. 44/2020, para. 60.
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105.
The Working Group considers that the source has not provided sufficient information
to explain the nature of the political opinions held by Ms. Delgado Tabosky’s relative or how
those opinions led to the detention of Mr. Marrufo Capozzi and Ms. Delgado Tabosky for
reasons of discrimination. Accordingly, the Working Group is unable to make a
determination regarding the claims under category V.
Concluding remarks
106.
The Working Group notes with concern the report that the health of Mr. Marrufo
Capozzi and Ms. Delgado Tabosky has deteriorated during their detention because they have
not received appropriate medical care. According to reports, both individuals are being held
in the basement of the Directorate General of Military Counter-Intelligence, a facility
normally used for defendants in military proceedings. The Government provided information
that suggests that both individuals have undergone medical assessments and that the United
Nations has observed the conditions of detention.
107.
The Working Group urges the Government to ensure that conditions in all places of
detention meet international standards. 18 This includes the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), in particular
rules 12 to 27 relating to living conditions and medical attention. The Working Group refers
the case to the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health. The Working Group welcomes the decision
taken in May 2021 to stop allowing the intelligence services to run detention centres.19
108.
States are obliged to investigate and prosecute offences, including terrorism and other
serious offences. However, the opinion in the present case does not relate to the merits of the
charges against Mr. Marrufo Capozzi and Ms. Delgado Tabosky but, rather to the
circumstances in which the proceedings against them have been conducted. States must
respect the provisions of the Covenant, violations of which have been identified in this case.20
109.
This case is one of a number brought before the Working Group in recent years
concerning arbitrary deprivation of liberty in the Bolivarian Republic of Venezuela.21 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.22
Disposition
110.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Juan Carlos Marrufo Capozzi and María Auxiliadora
Delgado Tabosky, being in contravention of articles 6, 8, 9, 10 and 11 (1) of the
Universal Declaration of Human Rights and articles 2 (3), 9, 14 and 16 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
111.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Mr. Marrufo Capozzi and
Ms. Delgado Tabosky without delay and bring it into conformity with the relevant
international norms, including those set out in the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights.
18 CCPR/C/VEN/CO/4, para. 12; CAT/C/VEN/CO/3-4, para. 18; and A/HRC/34/6, paras. 133.127,
133.131 and 133.132.
19 A/HRC/47/55, para. 28.
20 Opinions No. 62/2020, para. 77; and No. 59/2020, para. 52.
21 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.
22 Opinion No. 47/2012, para. 22.
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112.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Marrufo Capozzi and Ms. Delgado
Tabosky immediately and accord them an enforceable right to compensation and other
reparations, in accordance with international law.23 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 both individuals.
113.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Marrufo Capozzi and Ms. Delgado Tabosky and to take appropriate measures against those
responsible for the violation of their rights.
114.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on Enforced or Involuntary Disappearances and the
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
115.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
116.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Marrufo Capozzi and Ms. Delgado Tabosky have been released
and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Marrufo
Capozzi and Ms. Delgado Tabosky;
(c)
Whether an investigation has been conducted into the violation of Mr. Marrufo
Capozzi’s and Ms. Delgado Tabosky’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Bolivarian Republic of Venezuela with its
international obligations, in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
117.
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.
118.
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.
119.
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.24
[Adopted on 16 November 2021]
23 A/HRC/45/16, annex I.
24 Human Rights Council resolution 42/22, paras. 3 and 7.