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.23-05604 (E) 190124 240124
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-fourth session,
29 August–2 September 2022
Opinion No. 55/2022 concerning Amílcan José Pérez
(Bolivarian Republic of Venezuela)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work,1 on 9 December 2021, the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Amílcan José Pérez. The Government replied to the communication on 7 March
2022. 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,
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/55
General Assembly
Distr.: General
27 March 2023
English
Original: Spanish
A/HRC/WGAD/2022/55
2
GE.23-05604
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.
Amílcan José Pérez is a Venezuelan national and a member of the Pemon Indigenous
people. He works as an artisan and tourism promoter in the municipality of Gran Sabana in
Bolívar State.
5.
Mr. Pérez Pérez was arrested on 22 December 2019 in the Indigenous town of
San Francisco de Yuruaní, also known as Kumarakapay, in Gran Sabana, by officers of the
Bolivarian National Guard. At the time, no court had issued a warrant for his arrest or
detention and no reason was given for his deprivation of liberty.
6.
He later learned that he had been arrested because of his alleged links to a military
rebellion at Marino Montilla Jungle Infantry Battalion No. 513, located in Luepa in Bolívar
State.
7.
On 10 January 2020, after being brought before Procedural Court of First Instance
No. 4 of the Criminal Court Circuit of the Judicial District of the Caracas Metropolitan Area,
which has jurisdiction over cases involving terrorism, Mr. Pérez Pérez was formally ordered
to be placed in pretrial detention.
8.
From the moment the Bolivarian National Guard officers took Mr. Pérez Pérez into
custody on 22 December 2019, he was kept in isolation and was unable to communicate with
his family or lawyers. He was subjected to different types of physical torture, including
suffocation, punches, beatings with blunt objects and kicks, as well as psychological torture,
threats and insults. He slept on the floor and had to relieve himself in bags and bottles, and
food was thrown to him on the floor. He was transferred to the El Rodeo II penitentiary in
Guatire, Miranda State, in May 2020, without a court order and despite the fact that he had
been ordered to be detained at the Directorate General of Military Counter-Intelligence in
Boleíta, Caracas.
9.
Mr. Pérez Pérez was held from 22 to 25 December 2019 at Jungle Infantry Battalion
No. 513 in Luepa. He was then transferred to the town of Guasipati in Bolívar State. On
6 January 2020, he was transferred to the Directorate General of Military
Counter-Intelligence in Boleíta. He remained there until 13 May 2020, when he was
transferred to the El Rodeo II penitentiary.
10.
At the arraignment hearing, which ended on 10 January 2020, representatives of the
Public Prosecution Service requested that Mr. Pérez Pérez be formally detained. His
detention was ordered by Procedural Court of First Instance No. 4 of the Criminal Court
Circuit of the Judicial District of the Caracas Metropolitan Area, which has jurisdiction over
cases involving terrorism.
11.
In the early morning of 22 December 2019, Kumarakapay police station, which
belongs to the police force of Bolívar State, was attacked by a group of unidentified persons.
On the same morning, Jungle Infantry Battalion No. 513 in Luepa and Motorized Cavalry
Squadron No. 5102 in the town of Santa Elena de Uairén were also attacked. The authorities
argued, without evidence, that Mr. Pérez Pérez had participated in those attacks.
12.
Mr. Pérez Pérez was charged with terrorism, criminal association, illegal possession
of firearms, theft of reserves of firearms or ammunition, use of an adolescent to commit an
offence, conspiracy against the political system of the nation and use of criminal proceeds
under articles 37 and 52 of the Organic Act against Organized Crime and the Financing of
Terrorism, articles 4, 112 and 121 of the Act on Disarmament and Arms and Munitions
Control, article 264 of the Child and Adolescent Protection Act and articles 132 and 470 of
the Criminal Code.
13.
Between approximately 6.30 a.m. and 7.30 a.m. on 22 December 2019, a commander
of Unit 623 of the Bolivarian National Guard went to the police checkpoint in San Francisco
de Yuruaní, also known as Kumarakapay, to report the arrest of a citizen, presumed to be
A/HRC/WGAD/2022/55
GE.23-05604
3
serving in the military, who had been travelling in a vehicle allegedly carrying weapons on
the road leading to the Pemon community of Paraitepuy de Roraima in Bolívar State.
14.
On the same day, between 1 p.m. and 2 p.m., two people were seen descending a hill
towards the town of Kumarakapay. They were met by members of the Community Police,
the Pemon territorial guard, and were identified as being members of the community. When
questioned, they stated that they had been taken under false pretences to Jungle Infantry
Battalion No. 513 in Luepa.
15.
Without giving notice or requesting authorization from the legitimate community
authority, officers of the Bolivarian National Guard then proceeded to carry out a series of
warrantless searches and began to arrest individuals for their alleged involvement in the
attacks, which in reality meant persons who happened to be at home at that moment. In that
context, Mr. Pérez Pérez handed himself over in the presence of the community authority
because he and his family had been subjected to physical and psychological abuse.
16.
Mr. Pérez Pérez was then brought before the military court in Guasipati. On
27 December 2019, following a first arraignment hearing, the military court held that it did
not have jurisdiction and referred the case to a special court in Caracas, which heard the case
on 9 and 10 January 2020, 18 days after Mr. Pérez Pérez’s arrest. The special court ordered
his pretrial detention at the headquarters of the Directorate General of Military
Counter-Intelligence.
17.
Mr. Pérez Pérez was held incommunicado until 20 February 2020, when he was
allowed to make his first phone call. On 13 May 2020, he was transferred, without a court
order and without notification to the defence, to the El Rodeo II prison, where his health has
deteriorated. Family members are not allowed to bring him food, clothing, medicine, personal
care items or water. Crammed into a foul-smelling space with 200 other inmates, he is
malnourished, dehydrated and feverish, to the point where he is often unable to stand up.
18.
Since 13 May 2020, Mr. Pérez Pérez has been held at the El Rodeo II prison, where
he has been subjected to inhumane conditions of detention, since the site is not suitable for
prolonged periods of detention. Following his pretrial hearing, which took place on 25, 26
and 27 November 2020, he was ordered to stand trial. However, to date, his case has not even
been assigned to a court.
19.
The source maintains that there is no basis for the deprivation of liberty under the
Constitution or national law. There is no evidence to support the claims of the prosecution or
the courts. Mr. Pérez Pérez was arrested without a warrant and without having committed
any crime. There is therefore no legal basis for his detention. His deprivation of liberty is
thus arbitrary under category I.
20.
Mr. Pérez Pérez is falsely accused of having participated in crimes that he did not
commit, in violation of the principle of strict legality under criminal law. His detention is an
effort by security agencies to criminalize a particular group of citizens in order to reinforce a
political narrative by which it is claimed, without justification, that those citizens are
attempting to carry out violent actions against the authorities. This a violation of Mr. Pérez
Pérez’s rights under articles 3, 7 and 9 of the Universal Declaration of Human Rights. It is
also a violation of Mr. Pérez Pérez’s human rights under articles 9, 10, 14 and 27 of the
International Covenant on Civil and Political Rights.
21.
The actions of the authorities amount to a violation of the rights set out in the
international norms cited above, and the detention is therefore arbitrary under category II.
22.
It is also claimed that the international norms 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. Mr. Pérez Pérez was detained without a
valid legal reason and without evidence of his participation in any of the criminal offences
with which he was charged. Furthermore, he has been subjected to torture and ill-treatment
and has been held incommunicado.
23.
According to the source, Mr. Pérez Pérez’s detention is based on judicial proceedings
that are politically motivated and designed to reinforce the line taken in the media by the
ruling party, over the course of which numerous international rules relating to a fair trial have
A/HRC/WGAD/2022/55
4
GE.23-05604
been violated. The warrantless arrest of Mr. Pérez Pérez, the obstruction of evidence, the
incommunicado detention and the use of torture to extract a confession all constitute
violations of international due process standards.
24.
The non-observance of the international norms relating to the right to a fair trial is of
such gravity as to give Mr. Pérez Pérez’s deprivation of liberty an arbitrary character, under
category III.
25.
With regard to category V, it is alleged that Mr. Pérez Pérez was unjustly deprived of
his liberty when he was identified by officers of the Bolivarian National Guard as having
been involved in the military rebellion that took place at Jungle Infantry Battalion No. 513.
26.
The source indicates that the Indigenous town of San Francisco de Yuruaní, also
known as Kumarakapay, has been constantly besieged by security officials, who have
militarized the area and harassed its lawful authorities, as reported on numerous occasions.
On 28 February 2019, the Inter-American Commission on Human Rights granted
precautionary measures to protect the Pemon Indigenous people in San Francisco de
Yuruaní.2
27.
The Indigenous town of San Francisco de Yuruaní, which is the detainee’s community
of origin and place of residence, is still besieged by State security forces.
28.
The source also points to a pattern of international law violations against protesters,
political activists, journalists, reporters and human rights defenders, in particular mass
arbitrary detentions of persons who are considered politically inconvenient, so as to prevent
them from expressing ideas and political opinions that run counter to government policies.
There is evidence that government bodies discriminate against persons who protest against
the Government.
29.
It is alleged that Mr. Pérez Pérez’s detention is politically motivated and designed to
intimidate and frighten anti-Government protesters and justify repressive measures based on
a narrative aimed at criminalizing dissent. In this context, the political nature of Mr. Pérez
Pérez’s detention is just one example of the systematic and widespread use of arbitrary
detention to discriminate against individuals on the grounds of their political opinion. It is
thus alleged that the detention is arbitrary under category V.
Response from the Government
30.
On 9 December 2021, the Working Group transmitted the source’s allegations to the
Government. The Working Group requested the Government to provide detailed information
about Mr. Pérez Pérez’s case by 7 February 2022. In addition, the Working Group requested
the Government to safeguard Mr. Pérez Pérez’s physical and mental integrity.
31.
On 4 February 2022, the Government requested an extension of the deadline and was
given until 7 March 2022 to reply. It submitted its response on 7 March 2022.
32.
The Government informed the Working Group that the proceedings against Mr. Pérez
Pérez, who was arrested on 23 December 2019, relate to the so-called Wey Pa’ka (Dawn)
operation, carried out by insurgents with the intention of causing unrest throughout the
country and disturbing peace, stability and the democratic order. Mr. Pérez Pérez was charged
with conspiracy against the political system of the nation, terrorism, criminal association and
theft of reserves of firearms or ammunition. During the operation, two vehicles were used to
transport approximately 15 people belonging to the Pemon ethnic group of the Kumarakapay
Indigenous community. According to information obtained from investigations, it is
understood that they had been offered 15 grams of gold in return for participating in the
operation.
33.
These people attacked the Kumarakapay police station, subdued the officers and took
their service weapons. They later confronted the Bolivarian National Guard in Santa Elena
de Uairén. Having been fended off by members of the Bolivarian National Guard, they went
to the Indigenous town of Kumarakapay, where the vehicles used for the attack on the
2 Inter-American Commission on Human Rights, resolution 7/2019, precautionary measure No. 181-19.
A/HRC/WGAD/2022/55
GE.23-05604
5
military and police facilities, as well as some of the weapons and ammunition that had been
illegally taken, were recovered.
34.
It was there that Mr. Pérez Pérez was arrested on 23 December 2019, having been
identified by several members of the community as a participant in the operation that had
taken place the previous day. Mr. Pérez Pérez was arrested in flagrante delicto, in accordance
with article 44 of the Constitution and the Code of Criminal Procedure, on such grounds and
in accordance with such procedure as are established by law, as required under article 9 (1)
of the Covenant.
35.
In accordance with article 234 of the Code of Criminal Procedure, a suspect is
considered to have been discovered in flagrante delicto if, just after the offence is committed,
he or she is pursued by the police, the victim or other individuals or is caught at or near the
scene while in possession of weapons, instruments or other items providing grounds to
believe that he or she is the perpetrator.
36.
Mr. Pérez Pérez was notified of the reasons for his detention and informed of his
rights, in accordance with the Constitution and the Covenant, as shown in the annexed
document, and in line with the guidance of the Human Rights Committee that oral
notification of reasons for arrest satisfies the requirement to inform the arrested person.3 He
was treated with respect for his integrity and human rights, as noted in the record of
notification of rights. There is also a document, duly bearing the detainee’s signature and
fingerprints, that certifies that he was not subjected to ill-treatment.
37.
On 26 December 2019, Mr. Pérez Pérez was brought before Military Court of Due
Process No. 17 in Ciudad Bolívar for an oral arraignment hearing, as provided for in
article 236 of the Code of Criminal Procedure, within 48 hours of arrest, in accordance with
the guidance of the Human Rights Committee. 4 The procedure thereby complied with
article 9 (3) of the Covenant, since the detainee was brought before a judge or other officer
authorized by law to exercise judicial power.
38.
During the arraignment hearing, Mr. Pérez Pérez was assisted by a public defender,
at his own request, and by an interpreter, in conformity with the rules of due process and the
legitimate right to a defence. At the end of the hearing, the court ordered that he be placed in
pretrial detention.
39.
On 30 December 2019, Military Court of Due Process No. 17 held that it did not have
jurisdiction and referred the case to Procedural Court of First Instance No. 4, which has
national jurisdiction over cases involving terrorism, because the allegations concerned
offences against public order, as set out in articles 37 and 38 of the Organic Act against
Organized Crime and the Financing of Terrorism.
40.
On 4 January 2020, in order to protect the defendant’s human rights, the Court ordered
a forensic medical examination. Twenty days later, on 24 January, the services of the public
defender were withdrawn and private lawyers assumed responsibility for Mr. Pérez Pérez’s
defence.
41.
On 21 February 2020, the Public Prosecution Service formally submitted the
indictment against Mr. Pérez Pérez for the aforementioned offences, and he was transferred
to the El Rodeo II remand and short-stay prison in the capital region.
42.
On 25 November 2020, following postponements for reasons of force majeure, the
preliminary hearing was held before the same court. The indictment brought by the Public
Prosecution Service was fully admitted and Mr. Pérez Pérez was ordered to remain in pretrial
detention. On 11 February 2021, Procedural Court of First Instance No. 4 with national
jurisdiction over cases involving terrorism ruled that the pretrial detention order should be
replaced with a non-custodial preventive measure, in accordance with the provisions of
article 242 (9) of the Code of Criminal Procedure, underlining that Mr. Pérez Pérez must
appear before the court when summoned, something that he has failed to do.
3 General comment No. 35 (2014), para. 26.
4 Ibid., para. 33.
A/HRC/WGAD/2022/55
6
GE.23-05604
43.
The deprivation of liberty and the proceedings brought against Mr. Pérez Pérez have
complied with Venezuelan law and the various international conventions. Mr. Pérez Pérez’s
detention cannot be considered arbitrary, since the circumstances of his detention and trial
do not fall within any of the categories identified by the Working Group. Neither can the
detention be considered to be politically motivated, since the Pemon Indigenous people has
never expressed political preferences.
44.
There is absolutely no discrimination against Indigenous Peoples, since the forms of
social, political and economic organization, cultures, customs, traditions, languages and
religions of the Indigenous Peoples of the Bolivarian Republic of Venezuela, as well as their
habitat and their Indigenous rights over the lands that they have ancestrally and traditionally
occupied, are recognized and guaranteed under the Constitution.
45.
The detention of Mr. Pérez Pérez was fully compliant with the provisions of the
Constitution, the Code of Criminal Procedure, the Universal Declaration of Human Rights
and the Covenant.
Additional comments from the source
46.
On 10 March 2022, the Working Group transmitted the Government’s response to the
source with a request for the source’s comments and observations.
47.
The source reiterated the information provided in the first submission, while providing
new details about the torture inflicted on Mr. Pérez Pérez and the impact it has had on his
health. The source presented a detailed analysis of Venezuelan law on detention and the
procedure used in the case of Mr. Pérez Pérez, as well as the Government’s interpretation of
the provisions of international human rights law.
48.
The source informed the Working Group that one of the other detainees had died on
the day of his arrest, 3 January 2021, as a result of the acts described in the complaint.
49.
The source also provided an analysis of the documents submitted by the Government
and cited the following excerpt from a report published in 2019 by the United Nations High
Commissioner for Human Rights: “Venezuelan indigenous peoples face serious violations to
their individual and collective rights. [The Office of the United Nations High Commissioner
for Human Rights] is particularly concerned about reports of threats and violence against
indigenous authorities and leaders, and targeted repression of Pemons who oppose the
Government. Further investigation into the rights of indigenous peoples is needed, with
particular attention to the repression of indigenous peoples, and violations of their collective
rights to land, territories and resources.”5
50.
The source concluded by stating that the arbitrary detention of Mr. Pérez Pérez is part
of a systematic pattern of discrimination against the Pemon Indigenous people by the State.
Discussion
51.
The Working Group thanks the source and the Government for their submissions.
52.
In determining whether Mr. Pérez Pérez’s deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
human rights law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations. Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.6
53.
The Working Group wishes to reaffirm that States have an obligation to respect,
protect and fulfil all human rights and fundamental freedoms, including liberty of person,
and that any national law allowing deprivation of liberty should be made and implemented
in conformity with the relevant international standards set forth in the Universal Declaration
of Human Rights, the Covenant and other applicable international and regional instruments.
5 A/HRC/41/18, para. 79.
6 A/HRC/19/57, para. 68.
A/HRC/WGAD/2022/55
GE.23-05604
7
Even if the detention is in conformity with national legislation, regulations and practices, the
Working Group is entitled and obliged to assess the judicial proceedings and the law itself to
determine whether the detention is also consistent with the relevant provisions of
international human rights law.
Preliminary issues
54.
In its response, the Government requests that, in light of the ample information and
explanations provided, the Working Group close the case in accordance with paragraph 17 (a)
of its methods of work, since Mr. Pérez Pérez has been at liberty for over a year. The
Government also requests that its right to a defence be upheld and that the State be allowed
to respond to the additional comments submitted by the source.
55.
The Working Group respectfully advises the Government that the Group was created
to serve the needs of victims of arbitrary arrest and detention worldwide. That was also the
motivation of the Human Rights Council when it encouraged States to cooperate fully with
the Working Group in its resolution 33/30. The Government’s request to close the case is
incompatible with this requirement.7
56.
In the discharge of its mandate, the Working Group refers to the relevant international
standards set forth in the Universal Declaration of Human Rights and the relevant
international instruments accepted by the States concerned, in particular the Covenant, and,
when appropriate, any other relevant standards.8
57.
Under its methods of work, the Working Group is authorized to render an opinion on
whether or not a deprivation of liberty was arbitrary, even if, as in the case of Mr. Pérez
Pérez, the detainee has been released.9 Therefore, the Working Group is not only competent
to rule on this case but required to do so, as it has repeatedly pointed out in its jurisprudence.10
58.
The Working Group appreciates the Government’s offer and its statements to the
effect that, in strict compliance with its international obligations, it will continue to cooperate
with the Working Group and other special procedures of the Human Rights Council, within
the framework of their respective mandates and the Code of Conduct for Special Procedure
Mandate Holders of the Human Rights Council, adopted in Council resolution 5/2.
Category I
59.
The source states that Mr. Pérez Pérez was arrested on 22 December 2019 – “in
flagrante delicto”, according to the Government – for his supposed involvement in a military
rebellion at Jungle Infantry Battalion No. 513. Mr. Pérez Pérez was arrested the day after the
events, because his neighbours indicated that he had participated in them. Mr. Pérez Pérez
was at home, and officers of the Bolivarian National Guard entered without an arrest or search
warrant and without having notified or requested authorization from the lawful community
authority. Mr. Pérez Pérez was not informed of the charges against him and he was not read
his rights. Mr. Pérez Pérez handed himself over in the presence of the community authority.
Acts of abuse and ill-treatment were carried out during the arrest, and threats were made
against him and his family.
60.
The source states that, following his arrest, and without evidence, Mr. Pérez Pérez
was charged with the following offences: terrorism, criminal association, theft of reserves of
firearms or ammunition, use of an adolescent to commit an offence, conspiracy against the
political system of the nation and use of criminal proceeds. According to the Government,
all these offences are defined in and punishable under the Organic Act against Organized
Crime and the Financing of Terrorism; the Act on Disarmament and Arms and Munitions
Control; the Child and Adolescent Protection Act; and articles 132 and 470 of the Criminal
7 Opinion No. 70/2018, paras. 32 and 33. See also Human Rights Council resolution 42/22, paras. 7 and
9, and A/HRC/36/38, para. 15.
8 A/HRC/36/38, para. 7.
9 Ibid., para. 17 (a).
10 Opinions No. 69/2019 and No. 31/2021.
A/HRC/WGAD/2022/55
8
GE.23-05604
Code. Even though he is a civilian, Mr. Pérez Pérez’s case was assigned to a military court
for trial.
61.
In refuting this assertion, the Government cites article 44 of the Constitution and
article 234 of the Code of Criminal Procedure, which defines the circumstances in which a
suspect is deemed to have been discovered in flagrante delicto, and claims that the arrest was
carried out in compliance with article 9 (1) of the Covenant. The Government has also
submitted arrest documents signed by the detainee indicating that the arrest procedure was
followed, including a document certifying that the detainee was not subjected to ill-treatment.
The Government stresses that the arrest was made in accordance with the Working Group’s
requirement that anyone who is arrested must be informed, at the time of arrest, of the reasons
for the arrest 11 and of the possible judicial avenue to challenge the lawfulness of the
deprivation of liberty.12
62.
While noting these claims, the Working Group points out that there are inconsistencies
in the Government’s rebuttals. Firstly, it finds that the Government has not shown that
Mr. Pérez Pérez was arrested in flagrante delicto, as that concept is understood in
international law, since such a situation arises when a person is detained at the moment of
committing an offence. Bearing in mind that the term comes from the Latin flagrans, meaning
“in actual perpetration”, it can also arise when a person is arrested after a pursuit immediately
following an offence or, failing that, if he or she is identified as responsible by the victim or
an eyewitness to the offence, provided that no more than 48 hours have elapsed from the
moment when the criminal acts were committed. Mr. Pérez Pérez’s arrest does not meet any
of these requirements. The Working Group recalls that the Inter-American Court of Human
Rights has ruled on several occasions that requirements for an arrest in flagrante delicto
cannot simply be assumed to have been met but must be proved by the authorities, which
they were not in this case.13
63.
Furthermore, it is clear that the documents submitted by the Government in its defence
are written in Spanish and are signed illegibly and stamped with the fingerprints of the
accused, who is an Indigenous person and needs an interpreter. There is nothing on file to
suggest that these documents were read to the accused in his own language, and the
Government has provided the Working Group with no information to that effect.
64.
The Working Group reiterates that both the accusations and the arrest were made
because neighbours indicated that Mr. Pérez Pérez had participated in the raid. The Working
Group reiterates that, at the time of the arrest, according to information provided by the source
and not refuted by the Government, Mr. Pérez Pérez was at his home, which officers of the
Bolivarian National Guard entered without an arrest or search warrant and without having
notified or requested authorization from the lawful community authority. He was not
informed of the charges against him and he was not read his rights. All these elements have
been analysed; they render Mr. Pérez Pérez’s detention arbitrary under category I and
establish the need to examine the facts under category III.
65.
The Working Group reiterates that it is not sufficient for there to be a law under which
an arrest may be authorized. The authorities must invoke that legal basis and apply it through
an arrest warrant.14 In the present case, the officers who arrested Mr. Pérez Pérez acted on an
understanding of arrest “in flagrante delicto” that has not been shown to be legally tenable,
as outlined above, and they did not present the required warrant or explain the reasons for
Mr. Pérez Pérez’s arrest, in violation of articles 3 and 9 of the Universal Declaration of
11 Article 9 (2) of the Covenant.
12 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 (A/HRC/30/37, annex), principle 7.
13 Inter-American Court of Human Rights, Guerrero, Molina et al. v. Venezuela, judgment of
3 June 2021 (merits, reparations and costs), Series C, No. 424, para. 108; and Fernández Prieto y
Tumbeiro v. Argentina, judgment of 1 September 2020 (merits and reparations), Series C, No. 411,
paras. 88–101. See also Opinions No. 35/2021 and No. 43/2021.
14 Opinions No. 36/2018, para. 40; No. 46/2018, para. 48; No. 44/2019, para. 52; and No. 45/2019,
para. 51.
A/HRC/WGAD/2022/55
GE.23-05604
9
Human Rights; article 9 (1) of the Covenant; and principle 10 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment.
66.
The Working Group stresses that the principle of legality requires that laws be
formulated with sufficient precision so that individuals can access and understand the law,
and regulate their conduct accordingly. The accusations against Mr. Pérez Pérez are based on
laws that are vaguely and broadly worded; as has happened in this case, such provisions can
lead to abuses, including arbitrary deprivation of liberty without a legal basis that meets the
essential prerequisite of the principle of legality, as required by article 11 (2) of the Universal
Declaration of Human Rights.15
67.
The Working Group points out that, in order to invoke a legal basis for deprivation of
liberty, the authorities should have informed Mr. Pérez Pérez of the reasons for his detention
when he was arrested. The Working Group is not convinced that this happened, despite the
Government’s claims to the contrary.16 Accordingly, the authorities have not established a
legal basis for Mr. Pérez Pérez’s arrest. The purpose of providing prompt notification of the
charges is to facilitate the determination of whether detention is appropriate.17 The failure to
do so renders Mr. Pérez Pérez’s detention arbitrary under category I.
68.
On 27 December 2019, Mr. Pérez Pérez was brought before a military court on
accusations of having breached the Organic Act against Organized Crime and the Financing
of Terrorism; the Act on Disarmament and Arms and Munitions Control; the Child and
Adolescent Protection Act; and articles 132 and 470 of the Criminal Code.
69.
Mr. Pérez Pérez’s placement under military jurisdiction specifically contravenes the
fundamental view set out by the Working Group in a 2014 report in which it addressed the
issue of military justice. 18 As the Working Group argues, there is an irreconcilable
contradiction of values in the make-up of military courts that results in their lack of
independence, since the most appreciated value in a military official is his or her obedience
to his or her superiors, while one of the core values of a civilian judge is his or her total
independence.19 The action taken was in violation of the Working Group’s decision regarding
the minimum guarantees that military justice must not fail to respect. Military courts should
only be competent to try military personnel for military offences and, if civilians have also
been indicted in a case, military tribunals should not try either military personnel or
civilians.20
70.
The military court therefore declined jurisdiction to hear the case after the arraignment
hearing and Mr. Pérez Pérez’s case was transferred to Procedural Court of First Instance
No. 4, with national jurisdiction over cases involving terrorism, since it allegedly involved
offences against public order as defined in articles 37 and 38 of the Organic Act against
Organized Crime and the Financing of Terrorism.
71.
The Working Group stresses that the draft principles governing the administration of
justice through military tribunals establish that military courts should, in principle, have no
jurisdiction to try civilians and that in all circumstances States should ensure that civilians
accused of a criminal offence of any nature are tried by civilian courts.21 The Working Group
has made it very clear that military courts should be incompetent to try civilians.22
72.
It follows that the detention of Mr. Pérez Pérez has violated the principles of
international human rights law under category I. The Working Group considers this situation
to be of such gravity that it has decided to refer the case to the Special Rapporteur on the
15 Opinions No. 77/2020 and No. 86/2020. See also opinions No. 41/2017, paras. 98–101; and
No. 62/2018, paras. 57–59.
16 Human Rights Committee, general comment No. 35 (2014), para. 30. See also Pavlovna Smirnova v.
Russian Federation (CCPR/C/81/D/712/1996), para. 10.3.
17 Human Rights Committee, general comment No. 35 (2014), para. 30. See also CAT/C/VNM/CO/1,
paras. 16 and 17.
18 A/HRC/27/48, paras. 66–71.
19 Ibid., para. 67.
20 Ibid., paras. 66–71.
21 E/CN.4/2006/58, principle No. 5.
22 A/HRC/13/30, para. 68 (a).
A/HRC/WGAD/2022/55
10
GE.23-05604
promotion and protection of human rights and fundamental freedoms while countering
terrorism and the Special Rapporteur on the independence of judges and lawyers.
73.
The source also indicates that Mr. Pérez Pérez was held incommunicado from the
moment of his arrest on 22 December 2019 until 27 December 2019, when he was brought
before the military court, which declined to hear the case. He subsequently remained in
incommunicado detention until 20 February 2020, when he was allowed to make his first
phone call. On 13 May 2020, he was transferred, without a court order and without
notification to the defence, to the El Rodeo II prison.
74.
The Working Group thus notes that, in total, Mr. Pérez Pérez was held
incommunicado for more than two months, even though both the Working Group and other
human rights mechanisms have stated that holding individuals incommunicado violates their
right to challenge the lawfulness of their detention before a court, in accordance with
article 9 (3) and (4) of the Covenant, and incommunicado detention amounts to a prima facie
enforced disappearance.23 This amounts to a violation of articles 2 (3) and 9 (4) of the
Covenant and article 8 of the Universal Declaration of Human Rights. A prisoner held
incommunicado is denied any judicial oversight of his or her detention, which is a
fundamental safeguard of personal liberty and is essential for ensuring that detention has a
legal basis.
75.
The Working Group reiterates that the fact that nobody knew Mr. Pérez Pérez’s
whereabouts is also consistent with the legal definition of enforced disappearance, which
violates numerous substantive and procedural provisions of the Covenant and constitutes a
particularly aggravated form of arbitrary detention.24
76.
Furthermore, given that Mr. Pérez Pérez was unable to challenge his detention before
a court, his right to an effective remedy under article 8 of the Universal Declaration of Human
Rights and article 2 (3) of the Covenant was violated.25 In view of the serious circumstances
of Mr. Pérez Pérez’s situation and the consequences for his legal rights entailed by his
incommunicado detention and disappearance, the Working Group has decided to refer this
case to the Working Group on Enforced or Involuntary Disappearances.
77.
The Working Group considers that the source has established a prima facie case that
Mr. Pérez Pérez was subjected to torture and ill-treatment. Such conduct violates 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, to which the Bolivarian Republic of Venezuela is a party. It also violates
principle 6 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment and rule 1 of the United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules). Given the serious consequences
suffered by Mr. Pérez Pérez as a result of his treatment, the Working Group has decided to
refer this case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health.
78.
In summary, the Working Group concludes that the seriousness of the facts described
above renders Mr. Pérez Pérez’s detention arbitrary under category I.
Category II
79.
The Working Group has not found sufficient evidence to consider Mr. Pérez Pérez’s
case under category II. There is no proof that he was involved in committing any offence or
that he was arrested in flagrante delicto while defending any of the fundamental principles of
human rights.
23 Opinions No. 76/2017, para. 59; No. 19/2019, para. 34; and No. 20/2020, para. 80.
24 Human Rights Committee, general comment No. 35 (2014), para. 17. See also A/HRC/16/48/Add.3
and opinions No. 5/2020, para. 74, and No. 6/2020, para. 43.
25 See Opinions No. 45/2017, No. 46/2017, No. 79/2017, No. 11/2018 and No. 35/2018.
A/HRC/WGAD/2022/55
GE.23-05604
11
Category III
80.
The Working Group acknowledges that Mr. Pérez Pérez was released on 11 February
2021, when Procedural Court of First Instance No. 4, with national jurisdiction over cases
involving terrorism, replaced the pretrial detention order with a non-custodial preventive
measure, in accordance with the provisions of article 242 (9) of the Code of Criminal
Procedure. The Working Group notes, however, that Mr. Pérez Pérez was held in pretrial
detention for more than a year.
81.
The Working Group reiterates that, in accordance with paragraph 17 (a) of its methods
of work, it reserves the right to render an opinion on whether or not the deprivation of liberty
was arbitrary, notwithstanding the release of the person concerned. Moreover, legal
proceedings in respect of Mr. Pérez Pérez are still ongoing and could lead to further
deprivation of liberty. For these reasons, the Working Group considers it important to issue
an opinion on the case and analyse it under category III.
82.
With regard to category III and respect for due process, the Working Group notes that,
in the present case, the fundamental rules of due process were not observed, since the source
indicates that Mr. Pérez Pérez has been accused of committing serious offences without any
legal basis.
83.
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. The Working Group has also examined the source’s claims and the Government’s
rebuttals regarding the presumption of innocence in the light of the Human Rights
Committee’s conclusions.26
84.
The Working Group notes that the presumption of innocence is fundamental to the
protection of human rights; it imposes on the prosecution the burden of proving the charge,
guarantees that no guilt can be presumed until the charge has been proved beyond reasonable
doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of
a criminal act must be treated in accordance with this principle. These elements serve to
compound the violation of the right to presumption of innocence, which was not afforded to
Mr. Pérez Pérez despite being guaranteed under article 14 (2) of the Covenant. Mr. Pérez
Pérez was arrested, allegedly in flagrante delicto, and was held in detention and prejudged
guilty on the basis of information from neighbours who, as noted above, are not even
identified in the proceedings.
85.
These facts render Mr. Pérez Pérez’s detention arbitrary under category III. The
situation is of such gravity that the Working Group has decided to refer the case to the Special
Rapporteur on the independence of judges and lawyers under category III as well.
86.
The Working Group notes that, after 18 days, on 9 and 10 January 2020, Mr. Pérez
Pérez appeared before Procedural Court of First Instance No. 4, with national jurisdiction
over cases involving terrorism. The Court ordered his placement in pretrial detention at the
headquarters of the Directorate General of Military Counter-Intelligence. Mr. Pérez Pérez
was charged with conspiracy against the political system of the nation, terrorism, criminal
association and theft of reserves of firearms or ammunition, even though there was no
evidence against him beyond the accusations allegedly made by neighbours who are not
identified in the proceedings.
87.
The Working Group has raised the issue of prosecution under vague criminal laws
with the Government on numerous occasions.27 The principle of legality requires that laws
be formulated with sufficient precision so that individuals can access and understand the law,
and regulate their conduct accordingly. In this case, it is surprising that the detainee has
remained in this situation on the strength of allegations made by his neighbours and without
26 General comment No. 32 (2007).
27 Opinions No. 21/1997, para. 6; No. 27/1998, para. 9; No. 13/1999, para. 12; No. 20/2003, para. 19;
No. 24/2011, para. 24; No. 27/2012, para. 41; No. 26/2013, para. 68; No. 45/2015, para. 15;
No. 40/2016, para. 36; No. 26/2017, para. 51; No. 27/2017, para. 35; No. 75/2017, para. 40;
No. 79/2017, para. 54; No. 35/2018, para. 36; No. 36/2018, para. 51; No. 46/2018, para. 62;
No. 8/2019, para. 54; No. 9/2019, para. 39; No. 44/2019, para. 55; and No. 45/2019, para. 54.
A/HRC/WGAD/2022/55
12
GE.23-05604
any evidence against him, a state of affairs that cannot be considered compatible with the
Universal Declaration of Human Rights or the Covenant.
88.
The Working Group reiterates that all persons deprived of their liberty have the right
to legal assistance by counsel of their choice, at any time during their detention, including
immediately after their arrest, and that such access must be provided without delay.28 In the
case of Mr. Pérez Pérez, the lack of access to counsel of his choice during the first phase of
his detention and indictment, coupled with the fact that he was held incommunicado, violated
his right to have adequate time and facilities to prepare his defence, as provided for in
article 14 (3) (b) of the Covenant.
89.
No firm case has been made against Mr. Pérez Pérez regarding his involvement in any
activities related to the financing of terrorism, conspiracy against the political system of the
nation or the use of criminal proceeds, among other accusations that have been made against
him. The State’s actions cast serious doubt on its respect for the principle of legality, which
requires that laws be formulated with sufficient precision so that individuals can access and
understand the law, and regulate their conduct accordingly.29
90.
The Working Group emphasizes that the application of vague or overly broad
provisions in the present case, and the total absence of any evidence relating to the
commission of acts of terrorism, mean that there is no legal basis to justify Mr. Pérez Pérez’s
detention and prosecution, which have led to a series of acts of torture and ill-treatment
committed in the name of combating terrorism. This situation seriously jeopardizes the legal
security of Venezuelan citizens, and the Working Group therefore reiterates its decision to
refer the present case to the Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism.
91.
Despite the lack of evidence, Mr. Pérez Pérez was brought before a military court,
which, on 30 December 2019, declined jurisdiction to hear his case and referred it to
Procedural Court of First Instance No. 4, with national jurisdiction over cases involving
terrorism.
92.
The Working Group notes that, on 21 February 2020, the Public Prosecution Service
formally submitted an indictment to the Court alleging that Mr. Pérez Pérez had committed
the aforementioned offences, even though 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 clearly establish the importance of ensuring that an
independent and impartial court can review the arbitrariness and lawfulness of the deprivation
of liberty, as a means of safeguarding the right set out in article 9 of the Covenant.30
93.
As shown by the statement submitted to the Working Group, the initial legal
proceedings against Mr. Pérez Pérez were handled by the Public Prosecution Service, which
proceeded to request a formal warrant for his arrest. The Working Group recalls that any
form of detention or imprisonment must be ordered by a judicial authority, in keeping with
the law, and that this authority must afford the strongest possible guarantees of competence,
impartiality and independence, in accordance with principle 4 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment.
94.
The Working Group stresses that the prosecutorial body cannot be considered a
judicial authority for the purposes of article 9 (3) of the Covenant. 31 Consequently, in
Mr. Pérez Pérez’s case, the authorities failed to establish the legal basis for the detention in
accordance with the Covenant. The Working Group reiterates that it is not sufficient for there
to be a law under which an arrest may be authorized; the authorities must invoke that legal
28 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 (A/HRC/30/37, annex), principle 9
and guideline 8. See also Human Rights Committee, general comment No. 35 (2014), para. 35.
29 Opinions No. 41/2017, paras. 98–101, and No. 37/2020, para. 60. See also opinions No. 62/2018,
paras. 57–59, and No. 65/2020.
30 A/HRC/30/37, annex, principle 6.
31 See opinion No. 64/2020. See also Human Rights Committee, general comment No. 35 (2014),
para. 32. See, further, opinions No. 14/2015, para. 28; No. 5/2020, para. 72; and No. 41/2020,
para. 60. See, lastly, A/HRC/45/16/Add.1, para. 35.
A/HRC/WGAD/2022/55
GE.23-05604
13
basis and apply it to the circumstances of the case through an arrest warrant.32 Articles 9 (2)
and 14 (3) (a) of the Covenant guarantee detainees the right to be promptly informed of the
nature and cause of the charges against them.33 As has been demonstrated, none of these
requirements were met in relation to Mr. Pérez Pérez.
95.
Moreover, the Working Group has indicated that anyone who is arrested must be
informed, at the time of arrest, of the reasons for the arrest34 and of the possible judicial
avenue to challenge the lawfulness of the deprivation of liberty.35 The reasons for the arrest
must include not only the general legal basis, but also enough factual specifics to indicate the
substance of the complaint and the wrongful act committed. These reasons are understood to
be the official basis for the arrest, not the subjective motivations of the arresting officer.36 In
the view of the Working Group, persons deprived of their liberty have the right to be informed
by the authorities, at the time of arrest, of their right to counsel of their choice.37 It reiterates
that this was not the case for Mr. Pérez Pérez, who was legally assisted by a public defender
during the first – and, ultimately, the most precarious – phase of his detention. Persons
deprived of their liberty also have the right to be informed promptly of the charges against
them.38 None of these requirements were met either before or during the first phase of the
proceedings against Mr. Pérez Pérez.
96.
The Working Group notes that, according to the Government, Mr. Pérez Pérez’s
hearings were postponed for reasons of force majeure. The preliminary hearing was held
before the Court on 25 November 2020, a year after Mr. Pérez Pérez’s arrest, during which
time he had remained in pretrial detention. It was not until that date that the charge filed by
the Public Prosecution Service was fully admitted and the detention order was confirmed.
This situation constitutes a violation of the right to be tried without undue delay in accordance
with article 14 (3) (c) of the Covenant. These guarantees are reinforced by the views of the
Human Rights Committee,39 which considers that delays in criminal proceedings can be
justified only by the complexity of the case or the behaviour of the parties, and that delays
for any other reason are incompatible with the Covenant and compromise the impartiality of
a trial.
97.
In addition, article 9 (1) of the Covenant provides that everyone has the right to liberty
and security of person. Moreover, article 3 of the Universal Declaration of Human Rights
reaffirms the right of everyone to liberty and security of person, as does article 7 (5) of the
American Convention on Human Rights, which provides that everyone is entitled to trial
within a reasonable time.
98.
The Working Group notes that an arrest or detention may be authorized by domestic
law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with
“against the law”, but must be interpreted more broadly to include elements of
inappropriateness, injustice, lack of predictability and due process of law, as well as elements
of reasonableness, necessity and proportionality. For example, remand in custody on criminal
charges must be reasonable and necessary in all the circumstances. Aside from judicially
imposed sentences for a fixed period of time, the decision to keep a person in any form of
detention is arbitrary if it is not subject to periodic re-evaluation of the justification for
continuing the detention.40
99.
In paragraph 4 of its general comment No. 8 (1982), the Human Rights Committee
states the following: “Also if so-called preventive detention is used, for reasons of public
security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must
be based on grounds and procedures established by law (para. 1), information of the reasons
32 A/HRC/19/57, para. 68. See also opinions No. 36/2018, para. 40; No. 46/2018, para. 48; No. 44/2019,
para. 52; and No. 45/2019, para. 51.
33 Human Rights Committee, general comment No. 32 (2007), para. 31.
34 Article 9 (2) of the Covenant.
35 A/HRC/30/37, annex, principle 7.
36 Ibid.
37 Ibid., principle 9.
38 Article 9 (2) of the Covenant.
39 General comment No. 35 (2014), para. 38. See also, inter alia, opinion No. 8/2017.
40 General comment No. 35 (2014), para. 12.
A/HRC/WGAD/2022/55
14
GE.23-05604
must be given (para. 2) and court control of the detention must be available (para. 4) as well
as compensation in the case of a breach (para. 5). And if, in addition, criminal charges are
brought in such cases, the full protection of article 9 (2) and (3), as well as article 14, must
also be granted.”
100.
The Working Group does not dispute the legitimate right of every State to fight
terrorism. However, it notes that the fight against terrorism must respect human rights and
that, in any case, any measure of deprivation of liberty must remain consistent with the norms
of international law. The Security Council and the General Assembly, while recognizing the
importance of the fight against terrorism, recall that States must ensure that any measure
taken to combat terrorism complies with their obligations under international law, in
particular international human rights, refugee and humanitarian law.41
101.
The Working Group notes that, on 11 February 2021, after keeping Mr. Pérez Pérez
in prison for a year and a month, Procedural Court of First Instance No. 4, with national
jurisdiction over cases involving terrorism, ruled that the pretrial detention order against him
should be replaced with a non-custodial preventive measure, in accordance with the
provisions of article 242 (9) of the Code of Criminal Procedure, and Mr. Pérez Pérez found
himself at liberty for the first time since 22 December 2019. Meanwhile, the proceedings are
still ongoing.
102.
Although Mr. Pérez Pérez has been granted a non-custodial preventive measure, the
Working Group remains convinced that the authorities have shown serious disregard for
international standards relating to the right to a fair, independent and impartial trial, in
contravention of articles 9–11 of the Universal Declaration of Human Rights and article 14
of the Covenant. Those violations of the right to a fair and impartial trial are of such gravity
as to give Mr. Pérez Pérez’s detention an arbitrary character under category III and to compel
the Working Group to refer this case to the Special Rapporteur on the independence of judges
and lawyers.
Category V
103.
Although the Government has denied the existence of discrimination against the
Pemon Venezuelan Indigenous people, the Working Group takes note of the relevant
conclusions of the Inter-American Commission on Human Rights and the relevant report of
the United Nations High Commissioner for Human Rights.
104.
The Working Group notes that, according to the conclusions of the Inter-American
Commission on Human Rights, the Indigenous community of San Francisco de Yuruaní has
been constantly besieged by State security officials, who have militarized the area and
harassed its lawful authorities, as reported on numerous occasions. On 28 February 2019, the
Inter-American Commission on Human Rights granted precautionary measures to protect the
Pemon Indigenous people of the San Francisco de Yuruaní community.42
105.
Moreover, at the 172nd session of the Inter-American Commission on Human Rights,
held in May 2019, information was requested on the situation of the Pemon community of
Kumarakapay because, at that time, there had been no change in the circumstances that had
led to the adoption of the resolution on precautionary measures. The Indigenous community
of San Francisco de Yuruaní, which is the detainee’s community of origin and place of
residence, continues to be besieged by members of State security forces such as the
Directorate General of Military Counter-Intelligence, the Criminal Investigation Service of
the Bolívar State police, the Bolivarian National Guard, the Bolivarian Army and the
Bolivarian National Intelligence Service.
106.
As reported by the United Nations High Commissioner for Human Rights, 43
“Venezuelan indigenous peoples face serious violations to their individual and collective
rights. [The Office of the United Nations High Commissioner for Human Rights] is
particularly concerned about reports of threats and violence against indigenous authorities
41 Security Council resolutions 1456 (2003) and 1624 (2005) and General Assembly resolutions 57/219,
58/187 and 59/191.
42 Inter-American Commission on Human Rights, resolution 7/2019, precautionary measure No. 181-19.
43 A/HRC/41/18, paras. 65–68.
A/HRC/WGAD/2022/55
GE.23-05604
15
and leaders, and targeted repression of Pemons who oppose the Government. Further
investigation into the rights of indigenous peoples is needed, with particular attention to the
repression of indigenous peoples, and violations of their collective rights to land, territories
and resources.”44
107.
In view of this background information and the Working Group’s own analysis of the
arbitrary detention and treatment of Mr. Pérez Pérez, the Working Group has concluded that
the arbitrary detention of Mr. Pérez Pérez is part of a systematic pattern of discrimination
against the Pemon Indigenous people by the Venezuelan State and therefore constitutes a
violation under category V of the categories identified by the Working Group. The Working
Group considers this situation to be of such gravity that it has decided to refer the case to the
Special Rapporteur on the rights of Indigenous Peoples.
108.
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.45 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.46
109.
In the light of the recurrent pattern of arbitrary detention identified by this
international human rights mechanism in recent years, the Government of the Bolivarian
Republic of Venezuela is urged to consider inviting the Working Group to make an official
country visit. Such visits are an opportunity for the Working Group to engage in direct
constructive dialogue with the Government and with representatives of civil society, with the
aim of better understanding the situation of deprivation of liberty in the country.
Disposition
110.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Amílcan José Pérez Pérez, being in contravention of
articles 1, 2, 3, 5, 7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and
articles 2, 7, 9, 10, 14 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, III and V.
111.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Mr. Pérez Pérez 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.
112.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Pérez Pérez immediately and
unconditionally and accord him an enforceable right to compensation and other reparations,
in accordance with international law.47
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. Pérez Pérez and to take appropriate measures against those responsible for the violation
of his rights.
114.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to: (a) the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment; (b) the Special Rapporteur on the independence of judges
and lawyers; (c) the Special Rapporteur on the promotion and protection of human rights and
44 Ibid., para. 79.
45 Opinions No. 18/2017, No. 37/2017, No. 52/2017, No. 84/2017, No. 87/2017, No. 24/2018,
No. 32/2018, No. 41/2018, No. 49/2018, No. 72/2018, No. 86/2018, No. 13/2019, No. 39/2019,
No. 40/2019, No. 75/2019, No. 80/2019, No. 81/2019, No. 18/2020, No. 20/2020, No. 44/2020,
No. 57/2020 and No. 73/2020.
46 Opinion No. 47/2012, para. 22.
47 A/HRC/45/16, annex I.
A/HRC/WGAD/2022/55
16
GE.23-05604
fundamental freedoms while countering terrorism; (d) the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health;
(e) the Working Group on Enforced or Involuntary Disappearances; and (f) the Special
Rapporteur on the rights of Indigenous Peoples, for appropriate action.
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. Pérez Pérez has been released unconditionally and, if so, on what
date;
(b)
Whether compensation or other reparations have been made to Mr. Pérez
Pérez;
(c)
Whether an investigation has been conducted into the violation of Mr. Pérez
Pérez’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 of 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.48
[Adopted on 1 September 2022]
48 Human Rights Council resolution 42/22, paras. 3 and 7.