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.23-12395 (E) 301023 311023
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. 61/2022 concerning José Eloy Rivas (Bolivarian Republic
of Venezuela)
1.
The Working Group on Arbitrary Detention was established by the Commission on
Human Rights in its resolution 1991/42. 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 7 March 2022 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning José Eloy Rivas. The Government replied to the communication on 2 June 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/2022/61
General Assembly
Distr.: General
11 July 2023
English
Original: Spanish
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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.
José Eloy Rivas is a national of the Bolivarian Republic of Venezuela, born on 25 May
1958. At the time of his arrest, he was 60 years old. He has his habitual residence in the
Libertador municipality of the Capital District. He is a former Metropolitan Police officer
and worked as a courier for a family business.
5.
According to the information received, on 5 August 2018, at approximately 8:00 p.m.,
while Mr. Rivas was at home at a family birthday gathering, officers attached to the
Bolivarian National Intelligence Service showed up at his home and asked to see one of his
children. Mr. Rivas responded that the son in question was not in the country. Immediately,
in front of children forming part of family, the police officers handcuffed Mr. Rivas and took
him away.
6.
The source states that, at the time the officers of the Bolivarian National Intelligence
Service arrived at Mr. Rivas’ house, no arrest warrant had been issued by a court. At no time
did they explain to Mr. Rivas the reason for his detention. The legal basis for the arrest is
unknown, since no warrant was presented at the time of the arrest.
7.
According to the source, the officers put Mr. Rivas in a van and, once inside the
vehicle, began to beat him. Mr. Rivas was asked some questions to which he did not know
the answer, regarding people he did not know. Mr. Rivas did not know what was going on,
but the more he insisted that he did not know anything, the more the officers beat him. He
was hooded and taken to his son’s apartment.
8.
Subsequently, Mr. Rivas was taken to the headquarters of the Bolivarian National
Intelligence Service, at El Helicoide, where he was brutally tortured: he was suffocated with
bags, beaten and kicked.
9.
On 7 August 2018, even though he was a civilian, officers of the Bolivarian National
Intelligence Service transferred Mr. Rivas to the custody of the General Directorate of
Military Counter-Intelligence, in Boleíta, Caracas.
10.
Also on 7 August 2018, Mr. Rivas was taken to the Venezuelan Palace of Justice to
be presented before Examining Court of First Instance No. 1 with jurisdiction over
terrorism-related offences of the Criminal Judicial Circuit of the district of the Caracas
Metropolitan Area. It was at this time that Mr. Rivas learned of the alleged reasons why he
had been detained and was being brought before a court. The Court ordered his pretrial
detention.
11.
According to the source, the authorities that requested the arrest were representatives
of the Public Prosecution Service, specifically public prosecutors Nos. 67 and 83, with
nationwide jurisdiction.
12.
After the arraignment hearing, Mr. Rivas was transferred to the headquarters of the
General Directorate of Military Counter-Intelligence where, as soon as he arrived, he was
subjected to physical and psychological torture. The source alleges that Mr. Rivas was
tortured around the clock, in the morning, afternoon, evening, night and early morning, for
four months, until 1 December 2018. Mr. Rivas was choked, punched and beaten with an
object that appeared to be a belt.
13.
Mr. Rivas could only wash himself once a month, and the sanitary conditions in the
cell where he was held were very poor. He used to relieve himself in bags and pots, and this
waste remained in his cell for a week. On one occasion, when Mr. Rivas told a guard that he
needed to go to the bathroom, the officer responded by giving him multiple lashings with a
belt. He slept on the floor, and his food was thrown onto the floor, from where he had to eat
it. In addition, he suffered psychological torture such as threats and insults.
14.
The source affirms that, during all this time, Mr. Rivas was unable to communicate
with his relatives. The authorities also denied him the right to speak to his lawyer.
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15.
The source reports that, following a 45-day investigation by the Public Prosecution
Service, the authorities filed an indictment against Mr. Rivas. He was charged with the
following offences: criminal association, defined in and punishable under article 37 of the
Act on Organized Crime and Financing of Terrorism; terrorism, defined in and punishable
under article 52 of the Act; financing of terrorism, defined in and punishable under article 53
of the Act; attempted murder of the President of the Republic, defined in and punishable
under articles 405 and 406 (3) (b) of the Criminal Code; attempted murder of the high military
command, defined in and punished under article 407 (2) of the Criminal Code; damage to
property, defined in and punishable under articles 473 and 474 of the Criminal Code; treason,
defined in and punishable under article 128 of the Criminal Code; and launching explosives
in public places, defined in and punishable under article 474 of the Criminal Code.
16.
The source notes that the reasons for Mr. Rivas’ detention outlined by the authorities
are based on the events of 4 August 2018, when the 84th anniversary of the Bolivarian
National Guard was being celebrated in the vicinity of Bolívar Avenue, in downtown
Caracas. While the President of the Republic was giving his speech, a loud detonation was
heard about 200 metres from where he stood on the stage. A remotely piloted flying object,
identified as a drone carrying explosives, was spotted. The reason for Mr. Rivas’ arrest and
indictment is that it was his son’s company, for which he provided courier services, that had
allegedly financed the operation.
17.
The source reports that Mr. Rivas did not have any authority in the company and the
position he held was that of courier. He was not in charge of the company, did not make
decisions and did not make or order payments. In addition, criminal liability is personal, so
even if his son were being investigated in connection with these events, there would still be
no justification for imprisoning Mr. Rivas.
18.
Mr. Rivas remained totally incommunicado until 1 December 2018, in violation of his
constitutional rights. A preliminary hearing began in February 2019, culminating on 1 July
2019. In the preliminary hearing, the Court dismissed the charges on offences of terrorism,
criminal association, attempted murder of the President of the Republic, attempted murder
with malicious intent of the high military command, damage to public property and unlawful
possession of explosives. The case went to trial for the offence of financing of terrorism.
19.
The source recounts that procedural formalities were carried out before the Court to
request a medical transfer and change of Mr. Rivas’ place of detention, and also to request
an interim non-custodial measure. In November 2019, the judicial authorities referred the file
to Examining Court of First Instance No. 1 with jurisdiction over terrorism-related offences,
and the hearings began in December 2019. The trial hearings continued until March 2020.
20.
According to the source, the hearings were suspended due to the coronavirus disease
(COVID-19) pandemic but resumed in August 2020. As at December 2021, Mr. Rivas’
hearings have been deferred four times, and to date the Court has not issued a ruling or set a
date for the hearings’ continuation.
21.
The source holds that, at the time of his arrest, Mr. Rivas was not caught in the act of
committing an offence and was not the subject of a legitimate arrest warrant drawn up in
advance. The source emphasizes that Mr. Rivas was only detained to exert pressure on one
of his sons, who at the time of the arrest was not in the country, since he was the person the
police authorities were really looking for.
22.
For this reason, the source concludes that it is obviously impossible to invoke a legal
basis to justify Mr. Rivas’ detention and, therefore, that his detention is arbitrary under
Category I.
23.
In relation to category III, 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.
24.
The source details that Mr. Rivas was arrested without a valid legal reason and without
evidence of any kind, and that he has been charged with very serious offences with the sole
purpose of pressuring his son to turn himself in to the authorities, since it was his son who
was actually wanted. In addition, he has been tortured, ill-treated and held incommunicado,
and his right to a defence has been severely restricted.
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25.
The source highlights that article 14 (1) and (2) of the Covenant provides that all
persons are equal before the courts and tribunals and are entitled to a fair and public hearing
by a competent, independent and impartial tribunal established by law in the determination
of any criminal charge or of rights and obligations in a suit at law. Likewise, everyone
charged with a criminal offence has the right to be presumed innocent until proved guilty
according to law.
26.
The source maintains that Mr. Rivas’ detention is the result of a judicial procedure
intended to punish not the accused but rather his son, who is the person originally the subject
of the investigation. According to the source, Mr. Rivas’ detention is a sign of collusion with
the Government and its systematic practice of using the judicial system as a tool for
persecution – a practice through which numerous international standards related to fair trial
are violated. The failure to provide Mr. Rivas with any evidence to support the charge of
alleged financing of terrorism brought against him violated minimum standards. The source
adds that Mr. Rivas has been tortured in order to make him plead guilty and in turn
incriminate his son.
27.
In relation to category V, the source highlights that Mr. Rivas was only imprisoned
because he is the father of a young man who is wanted by law enforcement officials in
connection with a case involving the President. Since the son is not a resident of the
Bolivarian Republic of Venezuela, the father was detained so that his son would turn himself
in.
28.
In order to determine whether the imprisonment of Mr. Rivas constitutes a violation
on the grounds of discrimination based on political or other opinion, the source analyses the
scope of his rights under international law, in particular: (a) the right not to be arbitrarily
detained, imprisoned or exiled; (b) the right, in full equality, to a fair and public hearing by
an independent and impartial tribunal, in the determination of a person’s rights and
obligations and of any criminal charge against him or her; (c) the right of everyone charged
with a criminal offence to be presumed innocent until proved guilty according to law in a
public trial at which they have had all the guarantees necessary for their defence; and (d) the
right of everyone not to be held guilty of any act or omission which did not constitute a
criminal offence under national or international law at the time it was committed and not to
be subjected to a heavier penalty than that which was applicable at the time the offence was
committed.
29.
In this context, the source also considers it relevant to mention the pattern of violations
of international law against political activists, journalists, reporters and human rights
defenders. The source argues that, in the case of the Bolivarian Republic of Venezuela, there
are precedents that reveal a systematic pattern whereby those considered close to persons
who are persecuted for being politically troublesome are arbitrary detained in order to prevent
the persecuted person from expressing political ideas and opinions contrary to government
policies.
30.
The source also states that Venezuelan government agencies punish the expression of
political ideas, as well as peaceful and legitimate protests, through the inappropriate use of
restrictions to existing rights.
31.
The source concludes that the arbitrary detention of Mr. Rivas was carried out on
political grounds, with the intention of intimidating and provoking fear in those who speak
out against the Government, in contravention of international law. The source also points out
that this pattern of conduct is used repeatedly and has entailed the arbitrary imprisonment of
relatives of military personnel, journalists, communicators and political and human rights
activists and even deputies of the National Assembly. In this context, the source asserts that
the political nature of Mr. Rivas’ detention is evident and is in line with the systematic and
widespread use of arbitrary detention for purposes of discrimination based on political
opinion. Ms. Rivas’ detention is therefore arbitrary under category V.
Response from the Government
32.
On 7 March 2022, the Working Group transmitted the source’s allegations to the
Government. The Working Group requested the Government to provide detailed information
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about Mr. Rivas’ case by 5 May 2022. The Working Group also called on the Government
to ensure his physical and mental integrity.
33.
On 2 May 2022, the Government requested an extension of the deadline and was given
until 6 June 2022 to reply. The Government submitted its response on 2 June 2022.
34.
The Government reports that Mr. Rivas is a Venezuelan citizen who was a
vice-president of the company Stand Electronic 327 C.A. He is currently being deprived of
his liberty on the basis of a judicial decision taken in the context of criminal proceedings
brought against him for his alleged responsibility for the commission of the offence of
financing of terrorism.
35.
The criminal proceedings against him are related to his alleged involvement in the
attempted assassination that occurred on 4 August 2018 in the vicinity of Bolívar Avenue in
Caracas during an event held to commemorate the anniversary of the Bolivarian National
Guard. The event was attended by the most senior State authorities in the country. When the
President of the Republic was delivering a speech, he was interrupted by the detonation of
two explosive devices attached to two remotely operated drones. Several military personnel
were wounded.
36.
According to the investigation carried out by the Public Prosecution Service, the bank
accounts of Stand Electronic 327 C.A. were used to finance and pay for the logistics and the
hotel room in Caracas used by the drone operators directly responsible for the activation of
the two explosive devices. In a raid carried out at the company’s headquarters, which was
duly authorized by a court, multiple items of evidence relevant to the events under
investigation were gathered.
37.
The criminal investigation report stated that the accommodation used by two persons
directly responsible for the terrorist act was allegedly paid for by Stand Electronic 327 C.A.
In the light of the events, online searches were carried out that led to the persons in charge of
the company, including José Eloy Rivas, among others, being identified.
38.
The arrest of Mr. Rivas was requested by the Public Prosecution Service, in exercise
of its powers under the Constitution of the Bolivarian Republic of Venezuela and the Code
of Criminal Procedure, before Examining Court of First Instance No.1 with jurisdiction over
terrorism-related offences on 5 August 2018.
39.
In response to the request of the Public Prosecution Service, Examining Court of First
Instance No.1 with jurisdiction over terrorism-related offences agreed to issue arrest warrant
No. 016-18, dated 5 August 2018, in accordance with article 236 of the Code of Criminal
Procedure.
40.
Mr. Rivas was arrested during the evening of 5 August 2018 by officers of the
Bolivarian National Intelligence Service, pursuant to arrest warrant No. 016-18.
41.
At the time of the arrest, officials of the Bolivarian National Intelligence Service
informed Mr. Rivas of the reasons for his arrest and his rights under the Constitution and
national law, the Universal Declaration of Human Rights, the Covenant and other applicable
instruments signed and ratified by the Bolivarian Republic of Venezuela. Upon arrival at the
headquarters of the Bolivarian National Intelligence Service, a record that Mr. Rivas had
been informed of his rights as a suspect was drawn up, which Mr. Rivas signed and marked
with his fingerprints.
42.
These procedural formalities were carried out by the Bolivarian National Intelligence
Service, acting as a criminal investigation body, pursuant to article 113 of the Code of
Criminal Procedure and article 4 (3) and (10) of the Regulations of the Bolivarian National
Intelligence Service.
43.
On 7 August 2018, Mr. Rivas was brought before Examining Court of First Instance
No. 1 with jurisdiction over terrorism-related offences for an arraignment hearing in
accordance with article 236 of the Code of Criminal Procedure.
44.
The arraignment hearing, which was held within 48 hours of the arrest, was conducted
in accordance with all guarantees of due process and the legitimate right to a defence.
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Mr. Rivas waived his right to appoint a lawyer of his choice and was therefore assisted by a
public defender.
45.
During this hearing, Mr. Rivas had the opportunity to state whatever he considered
relevant and to denounce any form of violation of his human rights that might have occurred
during his arrest and detention. However, he chose not to make a statement, as was his right
under article 49 (5) of the Constitution and article 14 (3) (g) of the Covenant.
46.
Mr. Rivas was charged with the offences of attempted murder of the President of the
Republic, attempted murder with malice aforethought and trivial motive, detonating an
explosive device at a public gathering, terrorism, financing of terrorism, criminal association
and violent damage to property.
47.
Mr. Rivas was promptly informed of the charges against him, in conformity with
article 9 (2) of the Covenant. Previously, at the time of his arrest, he had been informed of
the reasons for his arrest, as provided for in the aforementioned article.
48.
At the conclusion of the hearing, the Court ordered that he be placed in pretrial
detention at the headquarters of the General Directorate of Military Counter-Intelligence.
49.
The Court considered carefully whether the conditions for this custodial measure were
met. The reasons for the measure were duly explained, at great length, by judicial decision.
A decision to order pretrial detention is compatible with article 9 (3) of the Covenant. On
7 September 2018, Mr. Rivas was assessed by the National Forensic Medicine and Science
Service and the medical examiner recorded that Mr. Rivas had no external injuries and that
he was in good health. This evidence contradicts the source’s statements regarding the torture
he allegedly experienced during the 40 days he spent at the headquarters of the General
Directorate of Military Counter-Intelligence.
50.
On 21 September 2018, the Public Prosecution Service formally submitted to the
Court Mr. Rivas’ indictment for alleged commission of the following offences: attempted
murder, defined in and punishable under article 405, 406 (2) and (80) of the Criminal Code;
detonating an explosive device at a public gathering, defined in and punishable under articles
296 and 297 of the Criminal Code; violent damage to property, defined in and punishable
under article 473, in connection with article 474, of the Criminal Code; terrorism, defined in
and punishable under article 52 of the Act on Organized Crime and Financing of Terrorism;
financing of terrorism, defined in and punishable under article 53 of the Act on Organized
Crime and Financing of Terrorism; and criminal association, defined in and punishable under
article 37 of the Act on Organized Crime and Financing of Terrorism.
51.
The indictment against Mr. Rivas is supported by numerous items of evidence,
including witness and expert statements, documentary evidence, reports and expert
submissions.
52.
The Public Prosecution Service complied with legal requirements by filing its
indictment in due time, contrary to the source’s assertion.
53.
On 16 October 2018, Examining Court of First Instance No. 1 with jurisdiction over
terrorism-related offences set the date of the preliminary hearing for 14 December 2018.
54.
On 7 December 2018, Mr. Rivas’ private defence counsel requested certified copies
of the indictment, a request that the Court granted in a timely manner.
55.
On 14 December 2018, the preliminary hearing was deferred due to the defendant’s
failure to appear and was rescheduled for 17 January 2019. On this date, it was postponed
again, due to the absence of all the defendants, and, in view of the complexity of the case,
the hearing was extended over several sessions lasting until 29 July 2019.
56.
In the preliminary hearing, Examining Court of First Instance No. 1 with jurisdiction
over terrorism-related offences partially admitted the indictment filed by the Public
Prosecution Service against Mr. Rivas, accepting only the charge on the offence of financing
of terrorism.
57.
The Court ordered an oral, public trial and authorized Mr. Rivas’ pretrial detention in
accordance with articles 236, 237 and 238 of the Code of Criminal Procedure.
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58.
During the preliminary hearing, Mr. Rivas stated that, in the evening of 5 August
2018, the officers of the Bolivarian National Intelligence Service informed him that they had
a warrant for his arrest and that he was therefore required to go with them. He was also
informed of the reasons for his arrest. Mr. Rivas informed the officers of the Bolivarian
National Intelligence Service that he did not know anything about the criminal acts because
he was only the vice-president of the company.
59.
Mr. Rivas attested to having been subjected to alleged human rights violations during
his imprisonment. As a result, the Court agreed to request the Public Prosecution Service to
initiate an investigation. The Office of Public Prosecutor No. 125, specialized in the
protection of human rights, is hearing this complaint, which was filed a year after the arrest
and is currently under investigation.
60.
On 9 April 2019, Mr. Rivas received medical attention at a private clinic, in guarantee
of his right to health. Subsequently, Mr. Rivas’ defence counsel requested authorization from
the Court for food to be brought to him in his place of detention, in line with medical
recommendations. This request was authorized by the Court.
61.
The oral, public trial commenced on 2 December 2019 and has proceeded without
interruption until the present date. On 16 March 2020, court activities were suspended owing
to the COVID-19 pandemic, but the oral, public trial resumed on 5 August 2020 and has
continued without deferrals other than those caused by the absence of some of the
17 defendants for medical or other similar reasons.
62.
The trial has been proceeding without suspension, except as necessary to comply with
the State of National Emergency Decree issued by the National Executive in the context of
the COVID-19 pandemic. Additionally, on two occasions (6 and 20 August 2020), Mr. Rivas
was not taken to court because he was in quarantine.
63.
On 5 August 2020, the Public Prosecution Service requested an extension of
Mr. Rivas’ pretrial detention before Examining Court of First Instance No. 1 with jurisdiction
over terrorism-related offences, in view of the complexity of the case and the force majeure
circumstances.
64.
On 15 October 2020, the extension was granted, pursuant to article 230 of the Code
of Criminal Procedure.
65.
On 6 June 2021, the Court agreed to Mr. Rivas’ transfer from the General Directorate
of Military Counter-Intelligence to the Rodeo III detention centre, where he is currently being
held.
66.
The case is currently in the trial phase, and the various procedural actions undertaken
by Mr. Rivas’ private defence counsel are recorded in the case file, in compliance with due
process and the guarantees of the right to a defence.
67.
At all times, Mr. Rivas’ conditions of detention have been in line with the provisions
of the Constitution, as well as with applicable national and international standards.
68.
During the period of his detention, the authorities have ensured that Mr. Rivas has
received the medical attention required and that he has access to sanitary facilities and is able
to communicate with and receive visits from his family and lawyers. On several occasions
(9 April 2019, 22 October 2020 and 16 November 2020) he has been taken to health centres
for the purpose of receiving medical care.
69.
The Government affirms that the detention of Mr. Rivas cannot be considered
arbitrary under category I of the Working Group since it was carried out in accordance with
article 44 of the Constitution, articles 236 et seq. of the Code of Criminal Procedure, the
Universal Declaration of Human Rights and the Covenant. There is a legal basis for the
detention. The source’s assertions that Mr. Rivas was only a courier in the company and that
no court order was shown at the time of his arrest are false and are contradicted by Mr. Rivas’
own statement during the domestic proceedings. Mr. Rivas was arrested on the basis of
evidence that gives grounds to assume that he participated in the commission of a serious
offence and not, as the source has claimed, because it was a means to exert pressure on one
of his children.
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70.
The detention of Mr. Rivas can also not be considered arbitrary under category III,
since every stage of the criminal proceedings was conducted in strict compliance with the
guarantees of due process, fair trial and impartiality set forth in articles 10 and 11 of the
Universal Declaration of Human Rights and articles 9 and 14 of the Covenant.
71.
All stages of the proceedings have been carried out without undue delay. The
prolongation of the proceedings is justified by the complexity of the case. There are
17 defendants and the file contains more than 58 main submissions and 32 prosecutorial
submissions. There are 15 different defence attorneys. The body of evidence is made up of a
multiplicity of items provided by the parties. These circumstances have caused each of the
hearings to extend over several weeks and in some cases months.
72.
Likewise, the criminal proceeding against Mr. Rivas have not at any time been
intended to punish him for the acts of a third party, as the source affirms.
73.
In addition, the pretrial detention order has been assessed and approved by a court on
several occasions, specifically during the arraignment and the preliminary hearings and in
the decision authorizing the extension of Mr. Rivas’ detention issued on 15 October 2020.
74.
Similarly, Mr. Rivas’ detention does not constitute a violation of international human
rights law on the grounds of discrimination based on political or other opinion, since it was
ordered for the alleged commission of offences defined in Venezuelan law, without regard to
his personal situation or status. Therefore, it cannot be considered arbitrary in accordance
with category V of the Working Group.
Discussion
75.
The Working Group considered the communication during its ninety-fourth session
and adopted its opinion No. 61/2022 on 2 September 2022. However, the Working Group
was subsequently informed of the existence of a response submitted by the Government
within the deadline. As a result, the Working Group was only able to finalize this opinion on
4 April 2023. However, the numbering assigned during the ninety-fourth session was
maintained.
76.
The Working Group thanks the source and the Government for their timely
submissions.
77.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international law 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 challenged all of the claims of violations formulated by the source.
78.
The Working Group wishes to reaffirm that States have the obligation to respect,
protect and fulfil all human rights and fundamental freedoms, including liberty of person,
and to guarantee that any national law allowing deprivation of liberty should be formulated
and implemented in conformity with the relevant international standards set forth in the
Universal Declaration of Human Rights, the Covenant, the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment and other applicable
international and regional instruments. Even if the detention is in line with national law,
regulations and practices, the Working Group must assess the judicial proceedings and the
law itself in order to determine whether the detention is compatible with the relevant
provisions of international human rights law.
Category I
79.
The Working Group received information from the source about the case of Mr. Rivas,
who was arrested at his home on 5 August 2018 by a group of officers attached to the
Bolivarian National Intelligence Service. The officers asked him about his son’s whereabouts
and, when they did not receive an answer, they handcuffed him in the presence of his family
and took him away, beating and hooding him, without an arrest warrant, without giving a
2 A/HRC/19/57, para. 68.
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valid legal reason and without evidence of any kind, and he was charged with serious
offences. This was done for the purpose of pressuring his son into turning himself in to the
authorities, since it was purportedly Mr. Rivas’ son who was actually wanted. The source
clarifies that, for the reasons described, the arrest was not made in flagrante delicto.
80.
However, not only the Government but Mr. Rivas himself has stated that this assertion
is not correct, as can be seen in the court records of the trial containing Mr. Rivas’ statement
before the judge. In this statement, Mr. Rivas specifically states that the officers informed
him of the reasons for his arrest. Mr. Rivas is the vice-president of a company that paid for
the hotel room of the two persons who attempted to assassinate the President of the Republic
and other high-ranking government officials.
81.
According to the source, on 7 August 2018, officials of the Bolivarian National
Intelligence Service transferred Mr. Rivas to the custody of officials of the General
Directorate of Military Counter-Intelligence, in Boleíta, and then brought him before
Examining Court of First Instance No. 1 with jurisdiction over terrorism-related offences of
the Criminal Judicial Circuit of the district of the Caracas Metropolitan Area, at the request
of the Public Prosecution Service. The aforementioned Court ordered his deprivation of
liberty and pretrial detention.
82.
The Working Group notes that article 44 (1) of the Venezuelan Constitution
establishes that liberty of the person is inviolable and that, consequently, no person may be
arrested or detained except by virtue of a court order, unless caught in flagrante delicto,
which, as the source has shown, was not the case with Mr. Rivas.
83.
The Government has presented ample evidence about the circumstances under which
Mr. Rivas was detained that contradicts the source’s claims. In addition, the Working Group
notes Security Council resolution 1373 (2001), which stipulates that all States shall ensure
the prosecution of any person who participates in the financing, planning, preparation or
perpetration of terrorist acts or provides support for such acts.
84.
In these circumstances, the Working Group recalls that, in order for a deprivation of
liberty to have a legal basis, it is not sufficient for there to be a law authorizing the arrest.
The authorities must invoke that legal basis and apply it to the circumstances of the case
through a court order. International law requires the presentation of an arrest warrant, as a
procedure inherent in the right to liberty and security of person by virtue of articles 3 and 9
of the Universal Declaration of Human Rights, article 9 (1) of the Covenant and principles 2,
4 and 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.3 In this connection, the Government has invoked all of the
aforementioned instruments: moreover, Mr. Rivas himself has referred to them,
acknowledging that the Government has complied with the aforementioned instruments
when it comes to his case. He has signed a statement confirming this fact that has been
attached by the Government as an annex to its response.
85.
The Working Group also notes that article 9 of the Universal Declaration of Human
Rights provides that no one shall be subjected to arbitrary detention. The Working Group
recalls that, as stated by the Human Rights Committee in its general comment No. 35 (2014),
detention must be justified as reasonable, necessary and proportionate in light of the
circumstances and must be reassessed as it extends in time. It can be observed that this is the
case for Mr. Rivas’ detention, as demonstrated by the Government and as expressed publicly
by Mr. Rivas.
86.
The Working Group has indicated that anyone who is arrested must be informed, at
the time of their arrest, both of the reasons for the arrest and of the judicial avenues available
for challenging the lawfulness of the detention.4 The reasons for the arrest must include not
only the legal basis for the detention, but also factual specifics to indicate the substance of
the complaint and the wrongful act committed. These reasons are understood as being the
3 Opinions No. 42/2019, para. 46; No. 65/2019, para. 59; No. 77/2019, para. 38; No. 6/2020, para. 39;
and No. 14/2020, para. 49.
4 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).
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official basis for the arrest, not the subjective motives of the arresting officer.5 Likewise,
detained persons have the right to be promptly notified of the charges against them.6 The
Government has demonstrated compliance with these requirements both through a document
duly signed by Mr. Rivas and through Mr. Rivas’ own statement when he was given the floor
during his trial.
87.
Furthermore, the unequivocal nature of this arrest is based on the fact that it has been
proven that Mr. Rivas is the vice-president of an organization that financed and paid for the
accommodation of persons who attempted to assassinate the President of the Republic and
high-ranking officials, as satisfactorily demonstrated by the Government. Mr. Rivas has
stated that, although he is the vice-president of the company, he was not informed of anything
related to this act of terrorism. However, the Working Group cannot ignore the fact that
Mr. Rivas initially disclosed that he was only a courier for the aforementioned company.
88.
Any form of detention or imprisonment should be ordered by, or be subject to the
effective control of, a judicial authority, pursuant to the law, whose status and mandate should
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. In its response, the Government has provided a
detailed explanation of its fulfilment of these requirements.
89.
In the light of the foregoing, it is impossible for the Working Group to conclude that
the detention in the present case was arbitrary under category I.
Category III
90.
With regard to category III, which refers to the right to a fair trial and due process, the
Working Group recalls the source’s claim that Mr. Rivas was tortured around the clock for
four months, until 1 December 2018. According to the source, Mr. Rivas was choked,
punched and beaten with an object that appeared to be a belt. The Government refutes this
allegation, submitting as evidence a medical certificate dated 6 September 2018 which states
that Mr. Rivas had been examined and that he was in good health. Given the conflicting
information presented by the parties, the Working Group is unable to reach a conclusion on
this matter.
91.
However, the Working Group notes that, while the Government also stated that the
allegations of torture had led to an investigation, this has not been concluded after two years.
In the Working Group’s view, this lack of a promptly concluded independent investigation
into the allegations of torture affected the fairness of the proceedings. The failure to promptly
conduct such an investigation prejudiced Mr. Rivas’ right to a fair trial by undermining his
ability to raise the possible occurrence of torture as a ground for challenging the ongoing
proceedings, thereby violating his ability to prepare his defence pursuant to article 14 (3) (b),
and, potentially, article 14 (3) (g), of the Covenant insofar as any evidence was obtained as a
result of the alleged torture. The Working Group recalls that a coerced confession has an
impact on the entire judicial process, regardless of whether other evidence was available to
support the verdict.7 The Working Group refers this case to the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment.
92.
The Working Group is also concerned that Mr. Rivas was 61 years old at the time of
his arrest in 2018 and is currently 65 years old. The Working Group recalls that States should
treat older persons with dignity throughout their detention and should take into consideration
their specific needs with respect to their age, health status and disability. These considerations
are critical at every stage of the criminal justice process, especially at the pretrial, trial,
sentencing, appeal and post-sentencing detention stages.8 The Working Group refers the case
to the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health and the Independent Expert on the enjoyment of all
human rights by older persons for appropriate action.
5 Ibid.
6 Article 9 (2) of the Covenant.
7 Opinion No. 34/2015, para. 28; and opinions No. 52/2018 and No. 79/2018.
8 A/HRC/51/27, para. 15.
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93.
Also, according to the information presented by the source, Mr. Rivas has been in
pretrial detention for more than four years. The Government confirms this by indicating in
its response that the case is still ongoing, and notes that the delay in the trial proceedings is
justified by the complexity of the matter. The Working Group notes that, while the
individualized determination that Mr. Rivas’ pretrial detention is reasonable and necessary
appears to have been made, it is a well-established rule of international law that pretrial
detention should be ordered for the shortest possible period of time.9 The Working Group
considers that the delay in bringing Mr. Rivas’ case to trial has been, and continues to be,
unacceptably long, in violation of articles 9 (3) and 14 (3) (c) of the Covenant.10
94.
Lastly, the Working Group notes the source’s allegations that the authorities denied
Mr. Rivas the right to speak to his family and lawyers until 1 December 2018. The
Government denies this allegation and asserts that the arraignment hearing on 7 August 2018
took place with all the guarantees of due process and the legitimate right to a defence.
Mr. Rivas waived his right to appoint a lawyer of his choice and was therefore assisted free
of charge by a public defender. The Government also attaches a document signed by
Mr. Rivas in which the rights of the accused are enumerated. No further details of the legal
counsel’s visits have been made available to the Working Group.
95.
Accordingly, the Working Group is not convinced that sufficient evidence has been
presented to show that Mr. Rivas has in fact benefited from confidential legal assistance and
had sufficient means to prepare his defence. It recalls that all persons deprived of their liberty
have the right to legal assistance by a counsel of their choice at any time during their
detention, including immediately after their arrest, and that such access is to be provided
without delay. 11 The Government violated Mr. Rivas’ right to have adequate time and
facilities for the preparation of his defence and to communicate with a lawyer pursuant to
article 14 (3) (b) of the Covenant.
96.
In the light of the foregoing, the Working Group is convinced that the authorities
failed to comply with international standards relating to the right to a fair, independent and
impartial trial, as set forth in articles 9, 10 and 11 of the Universal Declaration of Human
Rights and articles 9 and 14 of the Covenant. The above-mentioned violations of the right to
a fair and just trial are of such gravity that they lead the Working Group to classify Mr. Rivas’
detention as arbitrary under category III.
Category V
97.
The Government has demonstrated that the acts committed by Mr. Rivas have been
investigated and prosecuted in compliance with the law and has affirmed that none of its
judicial actions were the product of an act of discrimination, but were rather acts that were
the product of a lengthy investigation.
98.
Therefore, the Working Group cannot conclude that the detention of Mr. Rivas falls
within the scope of category V.
99.
This case is one of a number brought before the Working Group in recent years
concerning arbitrary detention in the Bolivarian Republic of Venezuela.12 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
9 Opinions No. 28/2014, No. 49/2014 and No. 57/2014. See also A/HRC/19/57, paras. 48–58;
A/HRC/30/19; Kovsh v. Belarus (CCPR/C/107/D/1787/2008); CAT/C/TGO/CO/2, para. 12;
A/HRC/25/60/Add.1, para. 84; E/CN.4/2004/56, para. 49; A/HRC/19/57, para. 48; and
CCPR/C/TUR/CO/1, para. 17.
10 Opinion No. 8/2020, para. 72.
11 A/HRC/30/37, annex, principle 9 and guideline 8; and Human Rights Committee, general comment
No. 35 (2014), para. 35. See also General Assembly resolution 73/181, and A/HRC/45/16, para. 51.
12 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.
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imprisonment or other severe deprivation of liberty in violation of the rules of international
law may constitute crimes against humanity.13
100.
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
101.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of José Eloy Rivas, being in contravention of articles
9, 10 and 11 of the Universal Declaration of Human Rights and articles 9, 10 and 14
of the International Covenant on Civil and Political Rights, is arbitrary and falls within
category III.
102.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Mr. Rivas 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.
103.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Rivas immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law. In the context of the COVID-19 pandemic and the threat that it poses in places of
detention, the Working Group calls upon the Government to take urgent action to ensure the
immediate release of Mr. Rivas.
104.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Rivas and to take appropriate measures against those responsible for the violation of his
rights.
105.
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 right of everyone to
the enjoyment of the highest attainable standard of physical and mental health and (c) the
Independent Expert on the enjoyment of all human rights by older persons, for appropriate
action.
106.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
107.
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. Rivas has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Rivas;
(c)
Whether an investigation has been conducted into the violation of Mr. Rivas’
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;
13 Opinion No. 47/2012, para. 22.
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(e)
Whether any other action has been taken to implement the present opinion.
108.
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.
109.
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.
110.
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.14
[Adopted on 4 April 2023]
14 Human Rights Council resolution 42/22, paras. 3 and 7.