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.22-09277 (E) 181022 181022
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-third session, 30 March–8 April 2022
Opinion No. 16/2022 concerning Tomeu Vadell Recalde (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 9 August 2021 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Tomeu Vadell Recalde. The Government replied to the communication on 8
November 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/2022/16
General Assembly
Distr.: General
16 June 2022
English
Original: Spanish
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Submissions
Communication from the source
4.
Tomeu Vadell Recalde is a national of the Bolivarian Republic of Venezuela and of
the United States of America. His habitual place of residence is in the United States. At the
time of his arrest, he was 58 years of age.
5.
The information received indicates that, at the time of his arrest, Mr. Vadell was Vice-
President of Refining Operations of CITGO Holding, Inc. and CITGO Petroleum
Corporation. The positions that he held in the company were related to technical aspects of
the refining process rather than contract negotiations. Both companies are controlled by
Petróleos de Venezuela, S.A.
6.
The source states that, on 21 November 2017, Mr. Vadell and other CITGO executives
were in a meeting in Room C of the headquarters of Petróleos de Venezuela in Caracas when
a group of agents from the Directorate General of Military Counter-Intelligence, a body
attached to the Ministry of Defence, arrived and ordered him and five other CITGO
employees to move to Room B in the same part of the building. Once there, they were
arrested.
7.
The source notes that the basis for the arrest was the fulfilment of the procedural
conditions required for the issuance of an arrest warrant set out in articles 236, 237 and 238
of the Code of Criminal Procedure in the course of the criminal proceedings brought against
Mr. Vadell for the alleged commission of the offences of embezzlement, collusion with a
contractor (Anti-Corruption Act, arts. 54 and 72), money laundering and criminal association
(Act on Organized Crime and the Financing of Terrorism, arts. 35 and 37). Mr. Vadell was
arrested at the request of the public prosecutor’s office pursuant to an order issued by State
Procedural Court of First Instance No. 3 of the Judicial District of the Caracas Metropolitan
Area. He was locked in a basement, without natural light or ventilation, at the Directorate
General of Military Counter-Intelligence in Caracas.
8.
It was initially alleged that Mr. Vadell, in representation of CITGO Holding and
CITGO Petroleum Corporation, had signed an international debt refinancing agreement for
2014 and 2015, thereby compromising the assets of the Bolivarian Republic of Venezuela
without authorization from the executive branch.
9.
The source states that the reasons cited for the arrest subsequently changed, with the
authorities claiming that: (a) the refinancing agreement was never signed but had simply been
the subject of preparatory negotiations; (b) these negotiations had been authorized; (c) Mr.
Vadell was not a member of the boards of directors of CITGO Holding and CITGO
Petroleum Corporation so he could not take part in the negotiations; and (d) the arrest was
based on the fact that Mr. Vadell knew that negotiations concerning the debt of the
Venezuelan State were being carried out.
10.
The source states that, at 7.11 a.m. on 20 November 2017, National Prosecutor’s
Office No. 55 of the Public Prosecution Service, which has national jurisdiction, received a
complaint from an unidentified person alleging that officials of Petróleos de Venezuela and
its subsidiaries nationwide had committed irregularities. This situation deviated from the
normal procedure for receiving complaints: it is an irregularity for a specific prosecutor’s
office to receive a complaint directly as cases are normally randomly assigned in order to
ensure prosecutorial independence. This procedure prevents complainants from choosing
officials who are willing to accommodate them and therefore ensures that prosecutors act
impartially and objectively.
11.
The case file contains only a record of the receipt of the complaint rather than the
complaint itself. Therefore, nothing is known about the contents of the complaint or the
identity of the person who lodged it, which violates the right to a defence since neither Mr.
Vadell nor his defence lawyers can ever know the complainant’s identity.
12.
On the same day (20 November 2017), the prosecutor ordered the initiation of an
investigation. Just four hours later, the Directorate General of Military Counter-Intelligence
sent the prosecutor’s office an investigation report identifying Mr. Vadell and other
employees of CITGO Petroleum Corporation and CITGO Holding as possible perpetrators
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of the offences of embezzlement, collusion with a contractor, criminal association and money
laundering in connection with the fact that they had allegedly signed an agreement to
refinance the debt of CITGO Holding. According to the source, the investigation report did
not specify how the Directorate General had come by the information. It merely stated that
counter-intelligence work had been carried out but did not explain how the agents had
reached their conclusions.
13.
According to the information received, at 11.30 a.m. on the same day, the prosecutor’s
office submitted a 14-page request for the deprivation of liberty of Mr. Vadell and other
persons to Procedural Court No. 3, accusing them of embezzlement, collusion with a
contractor, criminal association and money laundering.
14.
The source points out that, only four and a half hours after the start of the investigation
and 20 minutes after the prosecutor’s office had received the investigation report, the
prosecutor had allegedly: (a) studied the evidence related to the investigation; (b) drafted a
14-page document describing the allegedly applicable offences and requesting that pretrial
detention be ordered; (c) gone to the courthouse; and (d) filed the document. The source
points out that it would be physically impossible to carry out all these activities within such
a short period of time, which shows that the prosecutor’s office did not act impartially and
had prepared its request for custodial measures before the investigation began.
15.
Three purported contracts and a letter of intent were attached to the request for
deprivation of liberty authorization as alleged proof that the offence had been committed.
However, these documents were not legally recognized because the investigation file does
not contain any information on where they were obtained and does not include the document
setting out the chain of custody of the evidence, which is required under Venezuelan law.
16.
The source notes that the prosecutor’s office submitted the request for deprivation of
liberty authorization directly to a specific court, in violation of the distribution procedures
applicable in the Bolivarian Republic of Venezuela, under which the Document Distribution
and Reception Unit, which is responsible for distributing documents among the different
courts, employs a random distribution system to ensure judicial impartiality. In this case, the
procedures were disregarded by the Public Prosecution Service, as the request for the
deprivation of liberty of Mr. Vadell and the other accused persons was specifically addressed
to Procedural Court No. 3, violating the procedures established to guarantee the impartiality
of the court hearing the case. Despite this, the Court received the document and granted the
requested authorization. This decision was taken on the same day (20 November 2017).
17.
During the arraignment hearing, Mr. Vadell and the other defendants were informed
that they had been arrested for signing an agreement for the refinancing of debt for 2014 and
2015, but they were not told what debt was involved. The court provisionally admitted the
claims put forward by the prosecutor’s office and ordered that Mr. Vadell be deprived of his
liberty. The source points out that this decision was based on no evidence other than an
investigation report that contained no information on the steps carried out or the documents
obtained, in violation of the procedure governing the chain of custody of evidence. Once the
detention order had been authorized, Mr. Vadell was transferred to the headquarters of the
Directorate General of Military Counter-Intelligence in the Boleita Norte district of Caracas.
18.
For the first 28 days following the arraignment hearing, Mr. Vadell was held
incommunicado; not even his lawyer at the time was allowed to visit him. Following this
initial period of incommunicado detention, Mr. Vadell was not allowed to have private
conversations with his defence lawyers; he was only permitted to talk to them for no more
than 20 minutes a week in the presence of agents of the Directorate General. These agents
checked, in advance, all the documents and notes that his lawyers wanted to show him, thus
violating his right to a defence and to the assistance of a lawyer.
19.
The source states that, following Mr. Vadell’s arrest, the investigation went on for 45
days and culminated in an indictment. For 30 of these 45 days, the prosecutor’s office refused
to disclose information about the proceedings and prevented all the defendants’ lawyers from
obtaining access to such information on the grounds that it was necessary to carry out
investigative measures whose outcome would be affected if they were not kept confidential.
After those 30 days had elapsed, it became clear from the case file that no investigative work
had been carried out that would have been compromised if it had been made public. Thus,
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Mr. Vadell’s defence lawyers were prevented from learning about the investigation and from
making timely requests for a judicial review of any possible irregularities that might have
occurred during that time.
20.
Mr. Vadell’s defence lawyers requested various investigative measures, but the
prosecutor’s office ignored those requests. This fact was reported to the court. The court
concluded that, as Mr. Vadell’s lawyers had had access to the investigation file for 15 of the
45 days established by law, his right to a defence had been upheld. This decision was taken
despite the irregularities that had occurred, such as the fact that the defendants had been held
in incommunicado detention at the Directorate General of Military Counter-Intelligence.
21.
On 5 January 2018, the prosecutor’s office filed indictments against Mr. Vadell and
other persons in which it expressly noted that some of the defendants, including Mr. Vadell,
did not belong to the board of directors of CITGO and did not participate in the negotiations
concerning the refinancing of its debt. It was pointed out that the refinancing agreement had
not even been concluded. The source notes that the prosecutor’s office acknowledged that
the act cited as justification for Mr. Vadell’s detention did not take place. Despite this, he is
still being held in detention.
22.
According to the source, the preliminary hearing was held on 7 June 2019, i.e. one
year and six months after the filing of the indictment by the prosecutor’s office, which
constitutes an extreme and unnecessary delay in the proceedings against Mr. Vadell. The
source states that, under the procedure established in the Code of Criminal Procedure, a
preliminary hearing to determine whether there is sufficient evidence to hold a trial must be
held within no fewer than 15 days and no more than 20 days of the filing of the indictment.
During the preliminary hearing, the Court decided to admit the indictment and keep Mr.
Vadell in detention, ignoring all the irregularities that had occurred in the proceedings.
Several months had passed since the order to initiate the trial had been issued.
23.
Furthermore, on 22 March, 8 July and 12 July 2019, the Department of State of the
United States issued several press releases concerning the persons detained in connection
with the CITGO case, including Mr. Vadell. In those press releases, the Government
expressed concern about the violation of the right to a fair trial and the detention conditions
of the inmates, who were suffering from serious health problems, and requested that the
inmates be released.
24.
On 9 December 2019, the Court issued a decision in which it: (a) declared that the
evidence against Mr. Vadell was contradictory and insufficient; (b) revoked the pretrial
detention order on the grounds that two years had already elapsed; and (c) granted the
alternative precautionary measure of house arrest. (As the measure originally ordered had
been revoked, the source argues that the correct course of action would have been to order
Mr. Vadell’s unconditional release.)
25.
The source reports that Mr. Vadell was subjected to enforced disappearance starting
on 5 February 2020. This situation is particularly alarming as the court and the prosecutor’s
office dealing with the case, far from providing him with the effective protection to which he
is entitled, participated in the enforced disappearance and tried to cover up the fact. The judge
deliberately ignored the defence’s complaints and issued writs intended to conceal Mr.
Vadell’s enforced disappearance, citing the decision of 9 December 2019 to make it appear
that a court had ordered pretrial detention, which was denied by the court that had issued the
decision. The judge also issued an order for Mr. Vadell’s pretrial detention while he was
being subjected to enforced disappearance. The source maintains that this amounts to an
enforced disappearance that the authorities attempted to cover up by making it appear that a
court had ordered pretrial detention (which, if it had, would have been arbitrary).
26.
The source notes that, when Mr. Vadell was removed from the residence where he
was being held, the order for his house arrest had not been revoked. On 19 February 2020,
following a request from the public prosecutor issued on 13 February 2020, the judge revoked
the house arrest order and issued a detention order against Mr. Vadell, despite the fact that
his whereabouts were unknown.
27.
At the time that the house arrest order was revoked, the judge had received several
written warnings that an enforced disappearance was taking place, and complaints had been
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lodged with the public prosecutor’s office and the Ombudsman’s Office about the situation.
Furthermore, the judge had stated in writing that she did not know Mr. Vadell’s whereabouts
and could not make certain decisions without first knowing whether he was in fact at the
Bolivarian National Intelligence Service, as the defence supposed.
28.
On 25 March 2020, Mr. Vadell called his family but did not tell them when he would
next contact them or where he was being held. According to the source, he was not allowed
to communicate with them on a regular basis. Even his lawyers were unable to contact him
following his disappearance on 5 February 2020.
29.
As Mr. Vadell’s defence lawyers were uncertain of his whereabouts, they submitted
a new petition to the court, requesting that extraordinary and immediate measures be taken
to locate him and that a humanitarian measure be granted to protect him against the
coronavirus disease (COVID-19) pandemic declared by the World Health Organization.
30.
On 19 October 2020, Mr. Vadell and two dozen other prisoners were transferred to
the Vicente Salías Sanoja Military Hospital, where two internists and a pulmonologist
attended to him. The doctors stated that, owing to pre-existing health conditions related to
age, high blood pressure, tuberculosis and pleurisy, Mr. Vadell faced a very high risk of
becoming seriously ill if he contracted COVID-19. The defence lawyers requested that an
alternative measure to imprisonment be taken in order to protect his health.
31.
The source reports that, on 20 October 2020, a court session was held at which three
documents were put forward as the prosecution’s most compelling evidence. The prosecution
argued that Mr. Vadell was being held in detention because he had allegedly signed
agreements for the restructuring of the debt of CITGO Petroleum Corporation for 2014 and
2015. According to the public prosecutor’s office, Mr. Vadell took part in these negotiations
and signed the documents. During the trial, however, it emerged that neither the parties nor
Mr. Vadell had signed the documents and that they do not refer to him, the management
positions that he held, or the departments in which he worked at CITGO. The Board of
Directors of Petróleos de Venezuela, which includes several members of the Government,
knew about these documents and approved them.
32.
On 3 November 2020, another court session was held at which Mr. Vadell and the
other detainees were forced to wear orange jumpsuits. The source argues that this violated
Mr. Vadell’s right to the presumption of innocence by unjustly making him look like a
convict.
33.
In addition, attempts were made to use some of the defendants’ private
correspondence, including that of a person who had died in prison while awaiting trial, as
evidence. These alleged communications were obtained without a court order, in violation of
the defendants’ right to privacy and due process. Mr. Vadell’s defence lawyers requested that
these documents be declared null and void.
34.
On 17 November 2020, at another court session, a complaint was lodged concerning
the serious human rights violations to which all the defendants in the case, including Mr.
Vadell, had been subjected. It also emerged that the defendants had been subjected to cruel
and inhuman treatment, as they had been held for months without being allowed to see or
communicate with their families or lawyers. The procedural time limits had been completely
disregarded, the judicial proceedings were not made public and no one was allowed to
witness the trial.
35.
In view of these facts, Mr. Vadell’s defence lawyers requested that the Court act in
accordance with the Constitution and the Criminal Code and that failure to do so would incur
criminal liability for non-compliance with the applicable laws and regulations. The defence
lawyers requested that the Public Prosecution Service initiate an investigation and order Mr.
Vadell’s unconditional release, identifying the persons responsible for the reported acts. They
also urged the prosecutor to exercise his or her powers and fulfil his or her duty by petitioning
for the acquittal and release of the detainees. Neither the judge nor the prosecutor assented to
this request.
36.
On 26 November 2020, three years after Mr. Vadell had been imprisoned, his trial
ended. At 7.30 p.m., the judge issued the judgment, handing down a sentence of 8 years and
10 months’ imprisonment for the offences of collusion with a contractor and criminal
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association, which are punishable under article 54 of the Anti-Corruption Act and article 31
of the Act on Organized Crime and the Financing of Terrorism. In the same decision, Mr.
Vadell was acquitted of the other two offences with which he had been charged:
embezzlement and money laundering. The Court effectively prevented the defence lawyers
from challenging the decision by not providing them with a copy of the judgment, without
giving any reason for not doing so, thereby making it impossible for them to prepare a
defence.
37.
On 15 December 2020, the defence lawyers obtained a copy of the judgment of
conviction handed down to Mr. Vadell. This document refers to him only as one of the
defendants who, by virtue of his position at CITGO, must have met with another defendant.
That is the basis on which he was convicted. The conviction is not based on any specific act,
as Mr. Vadell’s professional duties included meeting with his superiors.
38.
On 18 December 2020, the defence lawyers responded to these irregularities by filing
an appeal, which was not processed within the legal time limit. Mr. Vadell has not had legal
assistance since the day on which he was convicted, as his defence lawyers have not been
able to see him or consult with him about the appeal.
39.
On 20 January 2021, Mr. Vadell was taken to the Court that had heard the case in
order to sign – without the legal assistance of a lawyer of his choice – the sentencing
document and other documents related to the trial. On the same day, the defence lawyers
managed to visit the courthouse and speak briefly with Mr. Vadell for the first time since his
conviction. On 30 January 2021, they were able to enter the facility where Mr. Vadell was
being held on a scheduled visit for the inmates’ family members. However, they did not do
so in their capacity as defence lawyers as they were unable to bring documents, notes or other
tools of their trade and the conversation was not confidential.
40.
According to the source, Chamber No. 2 of the Court of Appeal of the Judicial Circuit
of Caracas, which heard the appeal filed against Mr. Vadell’s sentence, has not yet ruled on
two other appeals, filed months beforehand, regarding the validity of the deprivation of
liberty and the evidence put forward by the defence.
41.
On 17 February 2021, prior to the resolution of the appeal filed against Mr. Vadell’s
sentence, the President of the Republic referred to the case during a press conference attended
by representatives of the national and foreign media. His allegations constitute interference
in the affairs of the judiciary and differed from the charges brought against Mr. Vadell, who
had never been accused of engaging in espionage but only of corruption and criminal
association.
42.
The source refers to the statement made in the trial by the Director of Operations of
the Directorate General of Military Counter-Intelligence, who said that intelligence work was
carried out over a year-long period and that the defendants were arrested without a court-
issued arrest warrant, which was prepared after the fact. This statement demonstrates the
arbitrary nature of Mr. Vadell’s detention and the way in which the case file was manipulated
to conceal this fact.
43.
According to the source, Mr. Vadell was transferred from El Helicoide to a property
rented by his relatives in the Bello Monte district, as he does not normally live in the
Bolivarian Republic of Venezuela. There he continued to be deprived of his liberty, wearing
an electronic ankle tag and guarded by two armed members of the Bolivarian National
Intelligence Service.
44.
The source argues that Mr. Vadell’s deprivation of liberty has no basis in the
Constitution or in national law since article 236 of the Code of Criminal Procedure provides
that a person may be detained only in the following circumstances: (a) an act punishable by
deprivation of liberty has been committed; (b) there is substantiated evidence linking the
accused person to the commission of the offence; (c) there is a flight risk or a risk that the
proceedings will be obstructed. None of these requirements has been met in this case. Mr.
Vadell did not participate in the alleged offence. The act in question was participation in
preliminary negotiations that did not result in the refinancing of sovereign debt of the
Bolivarian Republic of Venezuela or CITGO. The negotiations were public and were
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reported by the media. Even if the refinancing agreement had been established, it would not
have been an offence, since the Government was aware of it and authorized it.
45.
In addition, the source states that the General Manager of Human Resources of
CITGO Petroleum Corporation published a letter on 9 October 2019 stating that she had
conducted internal investigations but had not found any evidence that Mr. Vadell had
participated in any refinancing operation.
46.
The source also states that the international regulations relating to the right to a fair
and impartial trial, specifically articles 9 and 10 of the Universal Declaration of Human
Rights and articles 9 and 14 of the Covenant, have not been observed. The proceedings have
been beset by irregularities from the outset, when a complaint was improperly filed, and have
remained so ever since.
47.
The source notes that, in the criminal proceedings against Mr. Vadell, the rights that
were violated include the right to be tried by an impartial tribunal (Covenant, art. 14 (1)), the
right to have adequate facilities for the preparation of a defence and to communicate with
counsel (Covenant, art. 14 (3) (b)) and the right to be tried without undue delay (Covenant,
art. 14 (3) (c)), since the criminal proceedings have been unreasonably prolonged.
Response from the Government
48.
On 9 August 2021, the Working Group transmitted the source’s allegations to the
Government. The Working Group requested the Government to provide detailed information
about Mr. Vadell’s case by 8 October 2021. In addition, the Working Group requested the
Government to safeguard Mr. Vadell’s physical and mental integrity.
49.
On 8 October 2021, the Government requested an extension of the deadline and was
given until 8 November 2021 to reply. It submitted its response on 8 November 2021.
50.
The Government informed the Working Group that Mr. Vadell’s detention had been
requested on 20 November 2017 by the Public Prosecution Service through Procedural Court
of First Instance No. 3 of the Criminal Judicial Circuit of the Caracas Metropolitan Area,
pursuant to article 236 of the Code of Criminal Procedure. In response to the prosecutor’s
request, the court issued the corresponding arrest warrant. On 21 November 2017, agents of
the Directorate General of Military Counter-Intelligence arrested Mr. Vadell pursuant to the
arrest warrant issued by the court overseeing the case.
51.
During his arrest, Mr. Vadell was informed of the reasons for the arrest and his rights
under the Constitution, other national laws, the Universal Declaration of Human Rights, the
Covenant and other instruments applicable in the Bolivarian Republic of Venezuela. The
criminal proceedings against Mr. Vadell are related to the signing of international agreements
with financial institutions for the alleged refinancing of CITGO debt for 2014 and 2015.
These agreements were signed without the corresponding procedures being followed and to
the detriment of the assets of the Bolivarian Republic of Venezuela.
52.
The Directorate General of Military Counter-Intelligence acted in its capacity as a
criminal investigation body appointed by the court hearing the case, in accordance with
article 113 of the Code of Criminal Procedure and article 3.4.5 of the Directorate’s general
regulations. After his arrest, Mr. Vadell was transferred to Procedural Court No. 3 for his oral
arraignment hearing, during which he benefited from all due process guarantees and his
legitimate right to a defence. After the arraignment hearing, the Court confirmed the
preliminary charges brought by the Public Prosecution Service and ordered his pretrial
detention at the Directorate General of Military Counter-Intelligence.
53.
The Government adds that, on 7 June 2019, at the preliminary hearing held at
Procedural Court No. 3, where the charges brought by the Public Prosecution Service against
Mr. Vadell were upheld, he was ordered to stand trial, and his deprivation of liberty was
authorized in accordance with articles 236, 237 and 238 of the Code of Criminal Procedure.
The Government notes that the Court granted Mr. Vadell an alternative precautionary
measure of house arrest under the custody of agents of the Bolivarian National Intelligence
Service. This measure was enforced from 9 December 2019 until it was revoked in February
2020, when he was remanded to pretrial detention at the headquarters of the Bolivarian
National Intelligence Service in Caracas.
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54.
The Government states that, on 6 August 2020, following two deferrals caused by
reasons of force majeure and the COVID-19 pandemic, an oral public trial was initiated
before Trial Court of First Instance No. 1 of the Criminal Judicial Circuit of the Caracas
Metropolitan Area. The trial continued until 26 November 2020, when the court convicted
Mr. Vadell of the offences of collusion with a contractor and criminal association, which are
punishable under Venezuelan law. The court sentenced him to 8 years and 10 months’
imprisonment, and he was imprisoned at the headquarters of the Bolivarian National
Intelligence Service.
55.
The Government denies that Mr. Vadell was subjected to enforced disappearance and
asserts that he was legitimately deprived of his liberty and detained by judicial decision and
in strict compliance with the principles of due process and the legitimate right to a defence.
Duly reasoned information to this effect, rejecting the source’s unfounded speculations about
the actions of the Public Prosecution Service and the Court, and affirming that all actions
were conducted in accordance with the Code of Criminal Procedure, the Public Prosecution
Service Act and other applicable laws, was transmitted to the Working Group on Enforced
or Involuntary Disappearances in a timely manner on 24 June 2021.
56.
The Government maintains that Mr. Vadell was not arbitrarily arrested. In its
response, it has analysed and refuted the allegations of violations under each of the categories
identified by the Working Group and has denied that these categories correspond to the
source’s claims. It concludes by restating its intention to continue cooperating with the
Working Group.
Additional comments from the source
57.
On 8 November 2021, the Government’s response was transmitted to the source,
which responded by restating its claims, attaching the text of the summons to attend the
hearing and the judgment, and demonstrating the falsity of the accusation. The source points
out that Mr. Vadell was convicted as a result of another person’s professional activities and
functions. It states that the request for the arrest warrant was issued after the fact, which has
already been demonstrated and is confirmed even by the documents submitted by the
Government.
58.
The source reiterates that the appointment of the Directorate General of Military
Counter-Intelligence as a police body responsible for the investigation, the arrest of Mr.
Vadell without a warrant (an arrest which the Directorate General carried out) and his
imprisonment in Caracas are unconstitutional and unlawful acts. It adds that he was held
incommunicado, and in solitary confinement, for 45 days.
59.
It also states that Mr. Vadell’s house arrest was revoked on 5 February 2020 without
a court order, which constituted a de facto measure carried out by the Bolivarian National
Intelligence Service. This was the position taken by the Court, which rebuked the Bolivarian
National Intelligence Service with regard to Mr. Vadell’s whereabouts. Mr. Vadell’s defence
lawyers and family never received any information about the revocation of his house arrest
order and were never officially informed of his whereabouts. All the above is supported by
the evidence that has been submitted.
New information from the source
60.
In a recent communication to the Working Group, the source states that, on 16 October
2021, Mr. Vadell was again removed from his residence without the judicial house arrest
order having been revoked. A group of agents from the Bolivarian National Intelligence
Service asked Mr. Vadell to accompany them to El Helicoide for a medical examination. A
few hours later, Mr. Vadell called his family to ask for food and water because he was to
remain in detention at the Service’s headquarters. There was no legal basis for this action,
which was carried out without an order being issued by the Public Prosecution Service. Thus,
the executive branch once again acted in an arbitrary manner to the detriment of Mr. Vadell’s
rights.
Discussion
61.
The Working Group thanks both parties for their cooperation.
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9
62.
The Working Group has established in its jurisprudence the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations.2 In the present
case, the Government has chosen not to challenge the prima facie credible allegations made
by the source.
63.
The Working Group wishes to reaffirm that States have an obligation to respect,
protect and uphold all human rights and fundamental freedoms, including liberty of person,
and that any national law or procedure should be formulated and implemented in conformity
with the relevant international standards set forth in the Universal Declaration of Human
Rights and other international instruments to which the State is a Party. Consequently, even
if the detention is in conformity with national legislation and practices, the Working Group
has a right and an obligation to assess the judicial proceedings and the law itself to determine
whether the it is also consistent with the relevant provisions of international human rights
law.
64.
With regard to the Working Group’s competence to assess evidence, it should be noted
that the national courts, and not international human rights protection mechanisms, are
responsible for this process. The Working Group notes that it has consistently refrained from
taking the place of the national judicial authorities or acting as a kind of supranational tribunal
when it is urged to review the application of national law by the judiciary.3 This is because it
does not fall within its mandate to reassess evidence or deal with errors of law allegedly
committed by a national court.4 The Working Group considers that it is entitled to assess
court proceedings and the law itself to determine whether they meet international standards.
The Government is invited to refer to the resolutions of the Human Rights Council and the
jurisprudence of the Working Group, which affirm that the Working Group is responsible for
assessing the general procedures of the courts and the law to determine whether they comply
with international standards.5
Category I
65.
The Working Group has received credible information from the source indicating that,
on 21 November 2017, Mr. Vadell and five of his colleagues were arrested by agents of the
Directorate General of Military Counter-Intelligence on the orders of National Prosecutor's
Office No. 55. The arrest was based on a complaint filed by an unknown person that is not
included in the case file. No arrest warrant was issued and the reasons for the arrest were not
stated. The Government claims that the arrest was conducted in accordance with national
laws and international instruments but has failed to demonstrate this conclusively.
66.
Mr. Vadell was arrested on charges of having signed international agreements for the
refinancing of debt held by CITGO Holding and the CITGO Petroleum Corporation for 2014
and 2015, thereby compromising the assets of the Bolivarian Republic of Venezuela without
authorization from the executive branch. He was initially charged with the offences of
embezzlement and collusion with a contractor (punishable under the Anti-Corruption Act)
and criminal association and money laundering (punishable under the Act on Organized
Crime and the Financing of Terrorism). However, these offences were not committed and the
documents corresponding to the agreements were never signed by Mr. Vadell. These claims
have not been disputed by the Government, as a number of government officials have attested
to their veracity.
67.
The Working Group has pointed out that anyone who is arrested must be informed, at
the time of arrest, of the reasons for the arrest6 and be served with an arrest warrant. This is
inherent in the right to liberty and security of person and the prohibition of arbitrary
2 A/HRC/19/57, para. 68.
3 See opinion No. 40/2005.
4 See, for example, opinions No. 15/2017, No. 16/2017, No. 49/2019, No. 58/2019, No. 60/2019 and
No. 5/2021.
5 Opinions No. 33/2015, para. 80; and No. 30/2017, para. 26.
6 Covenant, art. 9 (2).
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deprivation of liberty7 since the facts forming the basis of the complaint and the wrongful act
in question constitute the official basis for the deprivation of liberty, not the subjective
motivations of the agents concerned.8 Furthermore, persons deprived of their liberty must be
informed of their right to legal assistance by counsel of their choice9 and of the judicial
avenues available to them to challenge the lawfulness of the arrest. Failure to provide this
information amounts to a violation of article 9 (2) of the Covenant and principles 2, 4, 7 and
9 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. Mr. Vadell
did not benefit from these rights, as he did not have access to lawyers of his choosing until
the pretrial procedures, hearings and other judicial proceedings were far advanced, in
violation of article 14 (3) (b) of the Covenant. The Government has repeatedly denied this.
68.
The Government has not refuted the claim that, on at least two occasions, Mr. Vadell
was held incommunicado and in a situation of enforced disappearance. The Working Group
recalls that subjecting detainees to incommunicado detention, which places them outside the
protection of the law, is a prima facie form of arbitrary detention and constitutes a violation
of article 6 of the Universal Declaration of Human Rights.10 It affirms that incommunicado
detention is not permitted under international human rights law, as it violates the right to
challenge the lawfulness of detention before a judge and articles 6, 8, 10 and 11 of the
Universal Declaration of Human Rights.11 It also constitutes a violation of principle 32 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. The Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment has consistently argued that incommunicado detention is unlawful.12
The Human Rights Committee, in its general comment No. 35 (2014), states that
incommunicado detention that prevents prompt presentation before a judge inherently
violates article 9 (3) of the Covenant.13
69.
Both the source and the Government state that the warrant for Mr. Vadell’s arrest was
issued by the public prosecutor’s office. According to the Working Group, its jurisprudence
and practice reflect the fact that the public prosecutor’s office is not considered to be an
independent judicial authority and that prosecutors cannot be regarded as officials exercising
judicial power within the meaning of article 9 (3) of the Covenant.14 The Working Group
considers that there must be a separation between the authority conducting the investigation
and the authorities responsible for ordering arrests and ruling on questions related to pretrial
detention in order to prevent self-incrimination and ensure that pretrial detention is not used
as a form of advance punishment. In the light of all the above, the Working Group concludes
that Mr. Vadell’s pretrial detention was in clear violation of article 9 (3) of the Covenant.15
70.
The Working Group has established that Mr. Vadell has been held in pretrial detention
for almost three years. Deprivation of liberty is not only a matter of legal definition but also
of fact, and it must be justified as reasonable and proportionate in the circumstances and re-
evaluated over time.16 It must not be punitive in nature and should be based on an individual
assessment of each person. Furthermore, 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 by the Working Group show that this did not occur in the case of
Mr. Vadell, who was arrested, held incommunicado, disappeared, granted house arrest and
7 Universal Declaration of Human Rights, arts. 3 and 9, and the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, principles 2, 4 and 10.
8 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, principle 7.
9 Ibid., principle 9.
10 Opinion No. 93/2017, para. 48.
11 Opinions No. 46/2017, para. 22; and No. 10/2018, para. 48.
12 A/54/426, annex, para. 42. See also A/HRC/13/39/Add.5, para. 156.
13 General comment No. 35 (2014), para. 35.
14 Ibid., para. 32. See also opinions No. 14/2015, para. 28; No. 5/2020, para. 72; and No. 41/2020, para.
60. See also A/HRC/45/16/Add.1, para. 35.
15 General comment No. 35 (2014), para. 35.
16 Ibid., para. 18.
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unlawfully transferred back to prison until he was sentenced. The Government has not
provided the Working Group with any plausible explanation for this.
71.
The Working Group notes that initially – for at least 45 days – Mr. Vadell was held
incommunicado and in solitary confinement, which constitutes enforced disappearance.17
Enforced disappearance violates the rights to personal liberty and personal security and the
right to protection of life.18 It also violates numerous provisions of the Covenant, including
articles 9 and 14, and constitutes a particularly aggravated form of arbitrary detention.19 The
Working Group hereby refers the present case to the Working Group on Enforced or
Involuntary Disappearances.
72.
The Working Group notes that article 11 (1) of the Universal Declaration of Human
Rights and article 14 (2) of the Covenant recognize the right of all persons charged with a
criminal offence to be presumed innocent; therefore, all State institutions are required to treat
such persons as innocent until the charge brought against them has been proven beyond
reasonable doubt. The Working Group and the Committee have established that this right
requires all authorities, including the executive branch, to refrain from prejudging the
outcome of a trial, which entails abstaining from making public statements affirming the guilt
of the accused.20 Furthermore, the Inter-American Court of Human Rights has stated that “the
right to be presumed innocent requires the State to refrain from informally convicting a
person or making public declarations regarding his or her guilt, thereby shaping public
opinion, so long as the person’s guilt has not been proven according to law”.21
73.
The Government has not denied that very senior State authorities have described Mr.
Vadell as a spy in statements made before the national and foreign press. In addition, he was
brought before the Court wearing the uniform of a convicted prisoner. The Working Group
has made it clear that such actions constitute a complete disregard for the right to the
presumption of innocence under article 14 (2) of the Covenant. They also violate article 11
(1) of the Universal Declaration of Human Rights and principle 36 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment, which
guarantee that everyone has the right to be presumed innocent.22 Statements and accusations
of this nature also violate the right to personal security guaranteed by article 9 (1) of the
Covenant. They not only violate the rights to the presumption of innocence and personal
safety but also seriously jeopardize the right to protection of life.23
74.
The Working Group recalls that public statements openly condemning accused
persons before a judgment is handed down in their case violate the presumption of innocence
and constitute undue interference that undermines the independence and impartiality of the
courts.24 It stresses that all public authorities have a duty to refrain from prejudging the
outcome of trials; this has not been done in the case of Mr. Vadell, since he was publicly
17 A/HRC/16/48/Add.3, para. 22.
18 General comment No. 35 (2014), para. 55.
19 Ibid., para. 17. See also opinions No. 11/2020, para. 41; and No. 41/2020, para. 61.
20 Human Rights Committee, general comment No. 32 (2007), para. 30. See also Kozulina v. Belarus
(CCPR/C/112/D/1773/2008), para. 98.
21 Inter-American Court of Human Rights, Pollo Rivera et al. vs. Peru, judgment of 21 October 2016
(merits, reparations and costs), Series C, No. 319, para. 177. See also Tibi v. Ecuador, judgment of 7
September 2004 (preliminary objections, merits, reparations and costs), Series C, No. 114, para. 182;
and J. v. Peru, judgment of 27 November 2013 (preliminary objection, merits, reparations and costs),
Series C, No. 275, paras. 244–247. Similar language appears in the findings of the European Court of
Human Rights in the cases of Allenet de Ribemont v. France, 10 February 1995, para. 41, Series A,
No. 308; Daktaras v. Lithuania, application No. 42095/98, para. 42, ECHR 2000-X; Petyo Petkov v.
Bulgaria, application No. 32130/03, para. 91, 7 January 2010; Peša v. Croatia, application No.
40523/08, para. 149, 8 April 2010; Gutsanovi v. Bulgaria, application No. 34529/10, paras 194–198,
ECHR 2013 (excerpts); Konstas v. Greece, application No. 53466/07, paras. 43 and 45, 24 May 2011;
Butkevičius v. Lithuania, application No. 48297/99, para. 53, ECHR 2002-II (excerpts); Khuzhin and
Others v. Russia, application No. 13470/02, para. 96, 23 October 2008; and Ismoilov and Others v.
Russia, application No. 2947/06, para. 161, 24 April 2008.
22 See opinions No. 6/2019 and No. 12/2019.
23 General comment No. 35 (2014).
24 See opinions No. 90/2017, No. 76/2018 and No. 89/2018.
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accused by the President of the Bolivarian Republic of Venezuela. Furthermore, Mr. Vadell
was brought before the Court wearing the uniform of a convict, contrary to the Committee’s
express position that defendants should not be presented to the court in a manner indicating
that they may be dangerous criminals.25
75.
The source states that Mr. Vadell’s house arrest was revoked on 5 February 2020,
without a court order and was thus a de facto measure carried out by the Bolivarian National
Intelligence Service. This view was expressed by the Court, which questioned the Bolivarian
National Intelligence Service about Mr. Vadell’s whereabouts. Mr. Vadell’s defence lawyers
and family never received any information about the revocation of his house arrest and were
never officially informed of his whereabouts. All the above is supported by the evidence that
has been submitted.
76.
Mr. Vadell has been held in pretrial detention for more than three years, and his house
arrest was suspended without any explanation. This severely aggravates the violation of his
rights, as the already unsatisfactory conditions under which he was being held deteriorated
even further during the COVID-19 pandemic.26
77.
According to the source, at a hearing held on 17 November 2020, it was claimed that
Mr. Vadell had been subjected to serious human rights violations, including cruel and
inhuman treatment. It was stated that the defendants were held in a basement for months
without any light or medical care and that they were prevented from seeing or communicating
with their families or lawyers. The Court and the public prosecutor’s office dismissed these
claims, and the Government has repeatedly denied them. In the light of these circumstances,
the Working Group has decided to refer the case to the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health
for appropriate action.
78.
The Working Group considers that the source has presented a credible prima facie
case that the detainee was subjected to cruel and inhuman treatment,27 in violation of the
absolute prohibition of torture as a peremptory norm of international law, article 5 of the
Universal Declaration of Human Rights, article 7 of the Covenant and articles 2 and 16 of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. The Working Group has therefore decided to refer the case to the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
79.
On 9 December 2019, the Court issued a decision stating that the evidence against Mr.
Vadell was contradictory and insufficient. It also admitted the request to revoke the measure
of pretrial detention, as two years had elapsed, and granted an alternative precautionary
measure of house arrest. As the Government itself has confirmed, the agreements were never
signed by the parties or by Mr. Vadell, and no offence has therefore been committed.
Although the Government has not been able to refute this, Mr. Vadell was tried and sentenced
and remains in prison, in violation of article 11 (2) of the Universal Declaration of Human
Rights and article 9 (1) of the Covenant.
80.
In the light of all the above, the Working Group is persuaded that Mr. Vadell has been
arbitrarily detained, in violation of articles 9, 10 and 11 (1) of the Universal Declaration of
Human Rights and article 9 (3) of the Covenant. His deprivation of liberty is considered to
be arbitrary under category I.
Category III
81.
As stated above, the Working Group is persuaded that, during Mr. Vadell’s detention,
his rights to be promptly informed of the reasons for the arrest, to be served with an arrest
warrant, to be informed of the right to counsel, to be brought promptly before a judge, to
have access to a court to verify the lawfulness of the detention, and to not be subjected to
automatic pretrial detention were not respected, in contravention of article 9 of the Covenant.
25 General comment No. 32 (2007), para. 30.
26 See A/HRC/47/55.
27 CAT/C/BHR/CO/2-3, para. 8.
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82.
The source claims that Mr. Vadell’s detention is arbitrary because the authorities have
not put forward sufficient evidence to convict him. The source argues that the detention was
not in compliance with the Code of Criminal Procedure and that the company where Mr.
Vadell worked stated that he was not responsible for the act of which he was accused. The
Government notes that the national courts are responsible for assessing the facts and evidence
and applying national law, except where such assessment or application has been shown to
be arbitrary. The Government claims that the requirements established in the Code of
Criminal Procedure and other national laws were respected. The Working Group recalls its
initial statement to the effect that, while it may determine whether proceedings meet
international fair trial standards, it may not act as a national court or appellate body or assess
whether the evidence brought against an accused person is sufficient or whether the
authorities complied with national law.28
Legal assistance
83.
The Working Group notes that Mr. Vadell has been repeatedly questioned without
legal assistance, including while he was in incommunicado detention, and that he even signed
documents without any lawyers present. The few meetings that he held with his defence
lawyers were neither private nor of sufficient duration since, when they were authorized, they
were restricted to 20 minutes per week and officials of the Directorate General of Military
Counter-Intelligence were always present. The officials reviewed in advance all the
documents and notes that his defence lawyers wished to show him, in clear violation of the
right to a defence and the assistance of a lawyer. The Working Group has noted that
confessions or signatures obtained without legal representation are not admissible as
evidence in criminal proceedings29 and that such actions constitute a serious lack of respect
for the defendant’s right to have adequate time and facilities for the preparation of a defence,
including the right to communicate with counsel of his own choosing, in clear contravention
of articles 10 and 11 (1) of the Universal Declaration of Human Rights and article 14 (3) (b)
of the Covenant.
Right to be tried by a competent, independent and impartial tribunal
84.
According to article 14 (1) of the Covenant, everyone is entitled to a fair hearing by a
competent, independent and impartial tribunal in the determination of any criminal charge
brought against him or her. The Working Group considers that the requirement of impartiality
demands that judges must not allow their judgment to be influenced by personal bias or
prejudice, nor harbour preconceptions about the particular case before them, nor act in ways
that promote the interests of any of the parties. The tribunal must also appear to a reasonable
observer to be impartial. 30 In this connection, the Working Group and the Committee
consider that States should take specific measures to ensure the independence of the judiciary
and to protect judges from any form of political influence in their decision-making either
under the Constitution or by means of the adoption of other laws.31
85.
In the case of Mr. Vadell, the Government has not sufficiently refuted the claims made
by the source concerning the procedure followed and the requirements related to the receipt
of the complaint and the independence of the court that heard the case, in contravention of
express provisions of the Criminal Code. Nor has the Government sought to refute the claim
that the complaint against Mr. Vadell was submitted by an anonymous party and does not
appear in the case file. Consequently, the contents of the complaint are unknown, which
hinders the defence and prevents the judge from forming his or her own opinion. This
situation is compounded by the lack of legal assistance and the difficulties faced by lawyers
in ascertaining what the charges were. Furthermore, it has been confirmed that Mr. Vadell
did not sign any document proving that he had taken any greater part in those negotiations
than his job required him to do, all of which demonstrates that the charges against him are
not supported by any evidence. All these elements constitute serious violations of the right
28 See opinions No. 64/2019, para. 89; and No. 46/2020, para. 62.
29 A/HRC/45/16, para. 53. See also opinions No. 1/2014, para. 22; No. 14/2019, para. 71; No. 59/2019,
para. 70; and No. 73/2019, para. 91. See also E/CN.4/2003/68, para. 26 (e).
30 General comment No. 32 (2007), para. 21.
31 Ibid., para. 19.
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to be tried by an independent tribunal 32 and the principle of equality of arms, thereby
seriously violating the right to a fair trial provided for in article 9 of the Universal Declaration
of Human Rights and article 9 (1) of the Covenant. Given these circumstances, the Working
Group hereby refers the case to the Special Rapporteur on the independence of judges and
lawyers.
86.
Furthermore, article 14 (3) (c) of the Covenant guarantees that all detainees must have
the right to be tried without undue delay. The Committee has stated that an important aspect
of the fairness of a trial is its expeditiousness and, in cases where accused persons are denied
bail by a court, they must be tried as expeditiously as possible. Mr. Vadell’s trial has taken
three years; his request for assistance during the COVID-19 pandemic went unheeded, and
the decision to hold him under house arrest was revoked without any court order being issued.
In these circumstances, the Working Group considers that the delay in bringing Mr. Vadell
to trial has been unacceptably long, in violation of articles 9 (3) and 14 (3) (c) of the
Covenant. As the Working Group has noted, prolonged pretrial detention and undue delays
in trials are serious problems that, in many cases, can lead to a situation that constitutes
arbitrary detention. There is a pressing need for the authorities to implement non-custodial
measures, such as those granted to Mr. Vadell and then suspended without any satisfactory
explanation from the Government.
87.
The case of Mr. Vadell is one of many that have been brought before the Working
Group in recent years concerning arbitrary detention in the Bolivarian Republic of
Venezuela. 33 These cases follow a familiar pattern of prolonged detention and
disproportionately long sentences being handed down after the authorities have refused
requests for effective legal remedies made within the established time limits and in
accordance with criminal procedure. In addition to these circumstances, other situations that
recur frequently in the cases examined by the Working Group include: denial of access to
case files, excessive delays in processing appeals, incommunicado detention, prosecution
under vaguely worded criminal offences, denial of access to legal counsel, brief trials behind
closed doors in which due process is not observed, disproportionate sentences and denial of
access to the outside world. This pattern indicates a systemic problem with arbitrary detention
in the Bolivarian Republic of Venezuela, which, if it continues, may amount to a serious
violation of international law. The Working Group recalls that, under certain circumstances,
widespread or systematic imprisonment or other severe forms of deprivation of liberty in
violation of fundamental rules of international law may constitute crimes against humanity.34
Disposition
88.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Tomeu Vadell Recalde, being in contravention of
articles 3, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles
9 (1), (3) and (4) and 14 (1), (2) and (3) (a), (b) and (c) of the International Covenant
on Civil and Political Rights, is arbitrary and falls within categories I and III.
89.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Mr. Vadell 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.
90.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Vadell immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law. 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
his immediate release.
32 Ibid., para. 21.
33 See opinions No. 13/2019, 39/2019 and No. 75/2019, among others.
34 Opinion No. 47/2012, para. 22.
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91.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Vadell and to take appropriate measures against those responsible for the violation of his
rights.
92.
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 and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment, for appropriate action.
93.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
94.
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. Vadell has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Vadell;
(c)
Whether an investigation has been conducted into the violation of Mr. Vadell’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.
95.
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.
96.
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.
97.
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.35
[Adopted on 1 April 2022]
35 Human Rights Council resolution 42/22, paras. 3 and 7.