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.23-04178 (E) 080623 080623
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-fifth session, 14–18 November 2022
Opinion No. 67/2022 concerning John Jairo Gasparini Ferbans
(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 51/8.
2.
In accordance with its methods of work, 1 on 1 July 2022 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning John Jairo Gasparini Ferbans. The Government replied to the communication on
30 September 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,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/67
General Assembly
Distr.: General
17 March 2023
English
Original: Spanish
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Submissions
Communication from the source
4.
John Jairo Gasparini Ferbans is a national of the Bolivarian Republic of Venezuela
born on 13 October 1977. He works as an auto mechanic.
5.
Mr. Gasparini Ferbans was arrested on 18 March 2020, put through irregular judicial
proceedings and subjected to physical and psychological torture and prolonged pretrial
detention, which began on 27 March 2020.
6.
On 18 March 2020, at around 6 p.m., Mr. Gasparini Ferbans left his family home on
his motorcycle and headed to the pharmacy to buy masks and gloves, since, at that time,
nationwide restrictions had been imposed in response to the coronavirus disease (COVID-
19) pandemic. The other members of his family were surprised that by 8 p.m. he had still not
returned.
7.
Mr. Gasparini Ferbans was arrested shortly after leaving a pharmacy in the
municipality of El Hatillo, as he was getting on his motorcycle. As he was leaving the
pharmacy, he was approached and surrounded by a group of strangers, whom he thought
were trying to steal his motorcycle. They were police officers, although they did not identify
themselves as such. The officers asked if he was “John Gasparini”, and, when he confirmed
that he was, leaped onto him and forced him into a van while one of them took his motorcycle.
They kept him handcuffed as they drove around in the van. Eventually, he was able to peek
out of the van, at which point he realized that they were on the premises of the Directorate
General of Military Counter-Intelligence in Boleíta Norte, in Miranda State.
8.
From there, Mr. Gasparini Ferbans was taken to a clandestine torture facility. He was
beaten several times. The torturers played loud music while they beat him to drown out his
screams.
9.
In the early morning of 19 March 2020, officials of the Directorate General of Military
Counter-Intelligence placed Mr. Gasparini Ferbans in handcuffs, hung him by his hands and
beat him again, this time with bats and hoses. After beating him for more than 40 minutes,
the officers took him to the second floor, sat him on a chair and tied his hands and feet. They
interrogated him again, and, because they were not getting the information they wanted,
smashed his fingers with a hammer until he fainted from the pain. They brought him back
downstairs and hung him from a fence with his hands above his head and his feet in the air,
exposing him to the cold. When he woke up, he could no longer move his fingers and his
wrists were bleeding from the time he had spent hanging. He was also beaten with golf clubs
on his knees, ankles and heels, burned with cigarettes and hit in the head with firearms. The
hearing in his right ear is damaged as a result of the torture. Four of his molars were broken.
10.
Mr. Gasparini Ferbans remained in this building from 19 to 27 March 2020, after
which he was transferred to the headquarters of the General Directorate General of Military
Counter-Intelligence in Boleíta.
11.
At 11.45 p.m. on the day of the arrest, armed officers dressed in black with their faces
barely visible turned up at Mr. Gasparini Ferbans’ family home, claiming to be from the
“health protection” department of El Hatillo local government and asking for Mr. Gasparini
Ferbans. They gathered outside the building, attempting to enter using a bunch of keys. Mr.
Gasparini Ferbans’ family thought that these strangers were attempting to burgle their home.
They tried calling their neighbours and the police but neither the telephone line nor the
Internet was working. Sometime later, once all the neighbours had become aware of the
alleged officials’ presence in the building, the intruders left. The house where Mr. Gasparini
Ferbans lived with his partner was also raided.
12.
On 19 March 2020, Mr. Gasparini Ferbans’ family reported his disappearance at El
Hatillo municipal police station. The police filed a report of the attempted burglary but
refused to file a report regarding Mr. Gasparini Ferbans’ disappearance on the grounds that
the 72-hour waiting period required by law had not yet expired.
13.
That same day, members of the family visited several hospitals, the headquarters of
the Directorate General of Military Counter-Intelligence in Boleíta, the headquarters of the
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Bolivarian National Intelligence Service in Plaza Venezuela and El Helicoide and a police
station in El Llanito, all of which are located within the Metropolitan Area of Caracas. In all
these places, officials denied Mr. Gasparini Ferbans’ presence.
14.
On 20 March 2020, Mr. Gasparini Ferbans’ family visited several morgues to find out
whether his body was among the corpses there. On the same day, they filed a formal report
of Mr. Gasparini Ferbans’ disappearance at the main headquarters of the Scientific, Criminal
and Forensic Investigation Unit of the Public Prosecution Service on Urdaneta Avenue in
Caracas. Detectives from the Scientific, Criminal and Forensic Investigation Unit travelled
to the family’s apartment building that same day to review video footage and photographs
taken by the neighbours. They requested the footage captured by the security cameras
operated by the municipality of El Hatillo but were denied access. After reviewing the images
provided to them, one of the detectives told the family that he needed to speak with them
privately and informed them that the white vans visible in these images were government
vehicles.
15.
On 27 March 2020, officials from the Scientific, Criminal and Forensic Investigation
Unit looking into the disappearance of Mr. Gasparini Ferbans called his family to inform
them that he was being detained at the headquarters of the Directorate General of Military
Counter-Intelligence in Boleíta Norte in Miranda State. A few days prior to receiving this
call, members of the family had visited the headquarters of the Directorate General of
Military Counter-Intelligence in Boleíta but had been told that Mr. Gasparini Ferbans was
not being held there.
16.
Later that same day, the family went to the headquarters of the Directorate General of
Military Counter-Intelligence in Boleíta to ask for Mr. Gasparini Ferbans. However, after
spending all day waiting, they were once again told by the officials working there that Mr.
Gasparini Ferbans was not being detained on the premises. At that moment, the family
confronted the officials, telling them that they had received information from the Scientific,
Criminal and Forensic Investigation Unit confirming that Mr. Gasparini Ferbans was being
held in the building. The officials of the Directorate General of Military Counter-Intelligence
made them wait for another four hours before finally asking them to come back the next day
and admitting that Mr. Gasparini Ferbans was indeed being held there.
17.
At his arraignment hearing on 27 March 2020, Mr. Gasparini Ferbans was charged
with the offences of criminal association and conspiracy against the political system by
National Prosecutor No. 67 of the Public Prosecution Service, who alleged that Mr. Gasparini
Ferbans, together with another civilian and a military officer, had been handing sensitive
information over to the Colombian authorities and that the three men were part of a
conspiracy, known as “Operation Constitution”, to overthrow the President of the Republic.
It is noted in the case file that Mr. Gasparini Ferbans’ mobile telephone number was saved
in the mobile contacts lists of a military officer and a civilian implicated in the conspiracy.
The source affirms that the three alleged conspirators did not know each other before being
arrested and had in fact met on account of being tortured at the same time by the Directorate
General of Military Counter-Intelligence.
18.
In the early morning of 28 March 2020, Mr. Gasparini Ferbans called his family but
managed to tell them only that he was being held at the Directorate General of Military
Counter-Intelligence in Boleíta before the call was cut off. On other occasions he was able to
call members of his family to ask them to bring him clothes and food, but all these calls were
also cut off abruptly. The officials of the Directorate General of Military Counter-Intelligence
refused to admit any food brought by the family other than biscuits. Later, the officials began
to steal the food that Mr. Gasparini Ferbans’ family brought to him.
19.
On one of their first visits to Mr. Gasparini Ferbans, his family found him with
cigarette burns on his hands, scars from cuts on his wrists caused by being handcuffed, black
eyes and several broken teeth. These injuries were the result of the brutal beating dealt out to
him by agents of the Directorate General of Military Counter-Intelligence in order to make
him confess. Family visits took place in the “fishbowl”, a room with large windows on all
sides, through which various officials kept constant watch.
20.
During the first few days of his detention, Mr. Gasparini Ferbans was held in the
“house of dreams”, a punishment cell in one of the basements of the Directorate General of
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Military Counter-Intelligence. The day before a United Nations mission arrived to verify
detention conditions, Mr. Gasparini Ferbans was transferred to another cell and made to stand
out in the sun, since he was very pale after having been kept indoors. Once he had been seen
by the visiting members of the Office of the United Nations High Commissioner for Human
Rights, he was returned to the “house of dreams”.
21.
Mr. Gasparini Ferbans was then transferred to an even worse cell known as the “doll’s
house”, in which he could neither fully stand up nor sit down for three days. He was in very
poor health as he had contracted COVID-19 and had a high fever.
22.
On one occasion, Mr. Gasparini Ferbans fainted and was transferred to the Military
Hospital, without his family’s being informed. The doctor who examined him there told the
officials of the Directorate General of Military Counter-Intelligence that if they did not
remove his handcuffs and stop putting pressure on him, they would kill him. Back at the
Directorate General of Military Counter-Intelligence, Mr. Gasparini Ferbans was tortured
using huge loudspeakers, which were placed at the entrance of his cell and blasted music at
full volume all day long to torment him.
23.
On 30 April 2021, Mr. Gasparini Ferbans was transferred to Ramo Verde Prison,
where the intensity of the torture slightly decreased.
24.
The torture to which Mr. Gasparini Ferbans was subjected damaged his teeth. On 16
July 2020, he was taken to see a dentist operating in a private practice, whose fees were paid
by Mr. Gasparini Ferbans’ family and who managed to partially alleviate the pain but had to
extract his broken molars piece by piece, without performing an examination. The dentist
told the officials of the Directorate General of Military Counter-Intelligence that Mr.
Gasparini Ferbans had to undergo a panoramic X-ray, which was never performed. The
dentist also reported that Mr. Gasparini Ferbans’ molars had been broken by blows to the
mouth and that it was possible that all his molars would have to be removed. Mr. Gasparini
Ferbans asked for a medical report, but the doctor refused to provide one.
25.
Without his family’s knowledge, Mr. Gasparini Ferbans was transferred from Ramo
Verde Prison to an unknown place of detention. His family then had no news of him until 22
October 2021. No one would provide any information, but eventually Mr. Gasparini Ferbans
was allowed to make a telephone call to inform his family that he was being held in the Simón
Bolívar New Men Training Centre, in the former outbuilding of La Planta Prison in El
Paraíso, Caracas.
26.
On 23 October 2021, his family brought him clothes and food, which the prison guards
initially refused to accept before changing their minds.
27.
Life inside prison has not been easy for Mr. Gasparini Ferbans, since he has no prior
criminal record and is now forced to contend with violent offenders.
28.
At the time the source’s information was received, Mr. Gasparini Ferbans was
awaiting public trial in detention at the Simón Bolívar New Men Training Centre.
29.
The source submits that the detention of Mr. Gasparini Ferbans falls under categories
I and III. Regarding category I, the source stresses that there is no evidence to justify the
pretrial detention of Mr. Gasparini Ferbans and that he was detained without being informed
of the reasons for his arrest.
30.
Article 9 of the Covenant provides that no one shall be deprived of his or her liberty
except on such grounds and in accordance with such procedure as are established by law.
Moreover, the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment provides that any person detained on a criminal charge shall be
brought before a judicial or other authority provided by law promptly after his or her arrest.
Such authority must decide without delay upon the lawfulness and necessity of detention.
31.
In the present case, Special Examining Court of First Instance No. 1, which has
jurisdiction over terrorism-related offences and is based in Caracas, issued an arrest warrant
against Mr. Gasparini Ferbans nine days after he was apprehended. The only possible course
of action in this case was detention by court order, a legal procedure regulated in articles 236
et seq. of the Organic Code of Criminal Procedure, which provides that, at the request of the
Public Prosecution Service, the due process judge may order the pretrial detention of the
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accused, provided that, inter alia, it has been proven that a punishable act warranting a
custodial sentence in respect of which criminal proceedings are clearly not time-barred has
been committed and there is substantiated evidence that the accused either perpetrated or
participated in the commission of this punishable act. Article 236 also provides that, within
48 hours of the arrest of the accused, he or she must be brought before the judge for an
arraignment hearing, in the presence of the parties and, where applicable, the victim, at which
point the judge must decide whether to maintain the measure imposed or replace it with a
less onerous one.
32.
Thus, according to article 236 of the Organic Code of Criminal Procedure, detention
by court order is permitted only when there is substantiated evidence that the accused has
either perpetrated or participated in the commission of a punishable act, the act in question
warrants a custodial sentence, criminal proceedings are clearly not time-barred and there is a
danger of flight or obstruction.
33.
Despite the aforementioned legal provisions, Mr. Gasparini Ferbans was placed in
pretrial detention on the basis of a rumour that he was part of an alleged conspiratorial
movement, even though he had no known access to weapons or the economic resources
necessary for such a movement and there was no evidence that an offence had been
committed, the only piece of evidence being the fact that other persons arrested in connection
with the alleged conspiracy, known as “Operation Constitution”, had Mr. Gasparini Ferbans’
telephone number saved in the contacts lists of their mobile telephones.
34.
National Prosecutor’s Office No. 67 and National Prosecutor’s Office No. 83, both of
which have national jurisdiction, based the indictment on the argument that Mr. Gasparini
Ferbans must be part of “Operation Constitution” because his mobile telephone phone
number was saved in the contacts lists of the other persons allegedly involved in the
conspiracy. On the basis of this indictment, Mr. Gasparini Ferbans has been awaiting trial in
detention since 18 March 2020, the trial having been postponed several times by order of the
judge in charge of Caracas Special Examining Court of First Instance No. 1 with jurisdiction
over terrorism-related offences.
35.
The source underlines that Mr. Gasparini Ferbans was not informed of the reasons for
his detention and recalls that everyone must be informed of such reasons and of the possible
judicial avenues for challenging the lawfulness of their deprivation of liberty, in accordance
with article 9 (2) of the Covenant and principle 7 of the United Nations Basic Principles and
Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty
to Bring Proceedings Before a Court.
36.
The reasons for the detention must include not only the general legal basis but also
the specific facts that constitute the substance of the complaint and the wrongful act
committed. These reasons are understood as being the official basis for the arrest not the
subjective motives of the arresting officer.2 In the view of the Working Group, persons who
are detained have the right to be informed by the arresting authority, upon apprehension, of
their right to a lawyer of their choice.3 In accordance with article 9 (2) of the Covenant,
persons deprived of their liberty also have the right to be informed promptly of the charges
against them.
37.
On 18 March 2020, the individuals who arrested Mr. Gasparini Ferbans did not
identify themselves, a prosecutor from the Public Prosecution Service was not present and,
at that time, an arrest warrant had not been issued by a competent authority.
38.
It was not until seven days later, on 25 March 2020, that National Prosecutor’s Office
No. 67 and National Prosecutor’s Office No. 83, both of which have national jurisdiction,
requested a court to issue a warrant for Mr. Gasparini Ferbans’ arrest. An arrest warrant was
then issued by the judge in charge of Special Examining Court of First Instance No. 1 with
jurisdiction over terrorism-related offences in Caracas. Mr. Gasparini Ferbans was not aware
of the charges against him until nine days after his arrest, when he learned of the reason for
his detention.
2 Human Rights Committee, general comment No. 35 (2014), para. 25.
3 A/HRC/30/37, annex, principle 9.
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39.
Mr. Gasparini Ferbans was therefore subjected to enforced disappearance between 18
and 27 March 2020. On 27 March 2020, nine days after his arrest, he was brought before
Caracas Special Examining Court of First Instance No. 1 with jurisdiction over terrorism-
related offences and forced to sign a document confirming that he had been notified of his
rights as a defendant which bore a different date to that of his actual arrest.
40.
At his arraignment hearing, Mr. Gasparini Ferbans was not allowed to appoint a
lawyer of his choice and was instead assigned a public defender with whom he had no contact.
For nine days, his family had no knowledge of his whereabouts. He was able to communicate
with family members only briefly, in the early morning of Saturday 28 March 2020, even
though they visited the headquarters of the Directorate General of Military Counter-
Intelligence in Boleíta several times seeking information on his detention, which the officials
working there consistently refused to provide.
41.
The Working Group has stated on previous occasions4 that incommunicado detention
amounts to a prima facie enforced disappearance, which has been universally condemned as
a denial of the purposes of the Charter of the United Nations, a grave and flagrant violation
of human rights and fundamental freedoms5 and a particularly aggravated form of arbitrary
detention.6
42.
The Working Group has also reiterated that incommunicado detention and enforced
disappearance restrict the rights to have access to a lawyer of one’s own choosing, to be
brought promptly before a judicial authority and to challenge before a judge the lawfulness
of the detention, which in turn implies a violation of article 9 of the Universal Declaration of
Human Rights and article 9 (3) of the Covenant.7
43.
With regard to category III, the source maintains that: (a) Mr. Gasparini Ferbans’ right
to be heard and to be presumed innocent were violated; (b) after his arrest, he was not brought
before a judge within a reasonable time; (c) his pretrial detention has been excessively
prolonged, in violation of the principle of presumption of innocence; and (d) the judicial
oversight required under article 9 (3) of the Covenant was lacking when he was brought
before the court after his arrest.
44.
Article 14 of the Covenant establishes, inter alia, that, in the determination of any
criminal charge against them, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal, and everyone charged with a criminal offence
shall have the right to be presumed innocent until proved guilty according to law.
45.
Both the right to be heard and the right to be presumed innocent imply that accused
persons have the right to present relevant evidence and testimony for their defence and that
evidence and witnesses alike should be examined by the parties to the trial. Once the evidence
has been produced, the court shall assess it in an objective and reasoned manner and shall
rule in accordance with the legislative provisions of the State.8
46.
Mr. Gasparini Ferbans is a victim of arbitrary detention under category III, since, to
date, he has not had a fair trial in accordance with due process.
47.
Mr. Gasparini Ferbans was arrested on 18 March 2020, but, at the time of writing, the
court in the case has still not made arrangements for his trial to begin, thereby subjecting him
to a custodial measure for more than two years, which exceeds the maximum limit foreseen
for such measures in criminal procedural law.
48.
Because there has been no trial, Mr. Gasparini Ferbans’ right to be heard by the court
has not been respected and there has been no ruling on the arguments put forward by his
defence, according to which there is clearly no evidence that might identify him as the
perpetrator of the offences with which he has been charged.
4 Opinions No. 19/2019, para. 34, and No. 76/2017, para. 59.
5 Declaration on the Protection of All Persons from Enforced Disappearance, art. 1.
6 Human Rights Committee, general comment No. 35 (2014), para. 17.
7 Opinion No. 53/2016, para. 47.
8 Opinion No. 59/2018, para. 89.
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49.
After his arrest, Mr. Gasparini Ferbans was not brought before a judge within a
reasonable time. On this point, the source recalls that article 14 (3) (c) of the Covenant
recognizes the right of everyone charged with a criminal offence to be tried without undue
delay. The Working Group and the Human Rights Committee have established 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 reasons are incompatible with the Covenant and
compromise the impartiality of a trial.9
50.
The Working Group has previously stated that accused persons have the right to be
brought before a judge in order to be tried without delay and have the judge review the
lawfulness of their detention.10 In addition, the detainee and/or his or her representative must
be informed of the factual and legal basis for the detention without delay so as to give them
adequate time to prepare a challenge. The disclosure must include a copy of the detention
order as well as access to and a copy of the case file and any other materials in the possession
of the authorities or to which they may gain access relating to the reasons for the deprivation
of liberty.11
51.
Venezuelan law establishes a precise and firm time limit for bringing a detainee before
a judge. This period of time may never exceed 48 hours, pursuant to article 44 (1) of the
Constitution and article 236 of the Organic Code of Criminal Procedure.
52.
In the present case, Mr. Gasparini Ferbans was arrested on 18 March 2020, a warrant
for his arrest was issued on 25 March 2020 (seven days later) and he was brought before the
court on 27 March (nine days later), in violation of article 44 (1) of the Constitution and
article 236 of the Organic Code of Criminal Procedure.
53.
The source also notes, among other relevant factors, the excessive prolongation of Mr.
Gasparini Ferbans’ pretrial detention, in violation of his right to be presumed innocent. The
source recalls that Mr. Gasparini Ferbans has been held in court-ordered detention for two
years without trial. According to the United Nations Standard Minimum Rules for Non-
custodial Measures, pretrial detention should be used only as a last resort in criminal
proceedings and must last no longer than necessary for the investigation of the alleged
offence and the protection of society, and the defendant must have the right to appeal to a
judicial or other competent independent authority in cases where pretrial detention is
imposed.
54.
Pretrial detention must be based on a determination of necessity; courts must examine
whether alternatives to pretrial detention, such as bail, electronic bracelets or other measures,
would render detention unnecessary in the particular case. 12 The source recalls that the
Working Group has also established that a review of alternative non-custodial measures
makes it possible to ascertain whether the principles of necessity and proportionality have
been met.13
55.
The source notes that article 9 of the Covenant establishes that anyone who is deprived
of liberty by arrest or detention has the right to trial within a reasonable time or to release and
the right to take proceedings before a court, in order that the court may decide without delay
on the lawfulness of the detention and order release if the detention is not lawful.
56.
Mr. Gasparini Ferbans remains in pretrial detention pending a public trial more than
two years after the date of his arrest. The trial has been deferred on several occasions. The
detention of Mr. Gasparini Ferbans is arbitrary not only because the two-year maximum
period for court-ordered pretrial detention has been exceeded but also because he was placed
in detention on the basis of scant evidence of his involvement in criminal wrongdoing.
57.
Mr. Gasparini Ferbans has been detained for more than two years without trial in what
amounts to an unjustified prolongation of pretrial detention beyond not only the reasonable
time limit recognized in international human rights standards but also the time limit
9 Human Rights Committee, general comment No. 32 (2007), para. 27.
10 Opinion No. 78/2018, paras. 75 and 76.
11 A/HRC/30/37, annex, para. 56.
12 A/HRC/19/57, paras. 48–58.
13 Opinion No. 63/2018, para. 30, and A/HRC/19/57, para. 55.
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established by Venezuelan national law, specifically in article 230 of the Organic Code of
Criminal Procedure.
58.
The source notes that the judicial oversight required under article 9 (3) of the Covenant
was lacking when Mr. Gasparini Ferbans was brought before the court after his arrest. On 27
March 2020, when Mr. Gasparini Ferbans was brought before the judge presiding over
Caracas Special Examining Court of First Instance No. 1 with jurisdiction over terrorism-
related offences, the judge ignored the multiple injuries that Mr. Gasparini Ferbans had
suffered and the various violations of due process that had occurred during his detention,
instead simply accepting the indictment brought by National Prosecutor’s Offices No. 67 and
No. 83.
59.
The source concludes that the deprivation of liberty of Mr. Gasparini Ferbans, being
in contravention of articles 1, 9, 10 and 11 of the Universal Declaration of Human Rights and
articles 9 (1), (2) and (3) and 14 (1) of the Covenant, is arbitrary and falls within categories I
and III.
Response from the Government
60.
On 1 July 2022, the Working Group transmitted the source’s allegations to the
Government. The Working Group requested the Government to provide detailed information
about Mr. Gasparini Ferbans’ case by 30 August 2022. The Working Group also called upon
the Government to safeguard his physical and mental integrity.
61.
On 30 August 2022, the Government requested an extension of the deadline and was
given until 30 September 2022 to reply. It submitted its response on 30 September 2022.
62.
The Government informed the Working Group that Mr. Gasparini Ferbans has been
deprived of his liberty in connection with a criminal trial before Court of First Instance No.
1, which has jurisdiction at the national level and competence to try terrorism-related offences
in the criminal court circuit for the Caracas Metropolitan Area. Mr. Gasparini Ferbans has
been charged with the offences of conspiracy against the political system, which is
established in and punishable under article 132 of the Criminal Code, and criminal
association, which is established in and punishable under article 37 of the Organic Act on
Organized Crime and the Financing of Terrorism.
63.
The proceedings brought against Mr. Gasparini Ferbans are related to his alleged
participation in the criminal enterprise “Operation Constitution”, the primary goal of which
was to assassinate the President of the Republic and other political leaders, civilians and
active and reserve military officers on 31 January 2019. He is also charged with participating
in a series of destabilizing activities against the legally constituted democratic order of the
country. These charges are based on various pieces of evidence gathered during an
investigation carried out by the Public Prosecution Service and its auxiliary bodies, notably
a police report according to which Mr. Gasparini Ferbans facilitated the execution of the
aforementioned plans together with two of the perpetrators of “Operation Constitution”.
64.
In view of the incriminatory evidence gathered during the investigation, on 25 March
2020, the Public Prosecution Service requested Examining Court of First Instance No. 1 with
national jurisdiction over terrorism-related offences to issue a warrant for Mr. Gasparini
Ferbans’ arrest, in exercise of its powers under the Constitution and the Organic Code of
Criminal Procedure. The Court issued arrest warrant No. 031-20 on 25 March 2020 pursuant
to article 236 of the Organic Code of Criminal Procedure.
65.
In the Bolivarian Republic of Venezuela, criminal procedure is accusatorial in nature
and only the Public Prosecution Service has the power to initiate criminal proceedings on
behalf of the State. In this procedural system, the Public Prosecution Service may request the
imposition of custodial measures, including pretrial detention, but it is the court hearing the
case that adopts the corresponding decision, either granting or denying the measure
requested, in accordance with the law.
66.
The Government argues that the Working Group’s interpretation of article 9 (3) of the
Covenant in its Views on the Bolivarian Republic of Venezuela is erroneous and insists that,
in the Bolivarian Republic of Venezuela, there is a clear separation between the authority that
initiates the investigation (the Public Prosecution Service) and the authorities in charge of
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9
detention and decisions relating to pretrial detention (the courts). Under no circumstances
does the Public Prosecution Service order or arrange arrests. The power to order arrests is the
exclusive prerogative of the judge, who issues the decision on requests made by the Public
Prosecution Service in its capacity as the sole authority with the power to initiate criminal
proceedings.
67.
The procedure followed in the Bolivarian Republic of Venezuela is not comparable to
that described in the cases frequently invoked as jurisprudential references by the Working
Group in its opinions on the Bolivarian Republic of Venezuela. In the case of opinion No.
14/2015, an arrest was ordered by the “Supreme State Security Prosecutor’s Office”, without
any oversight by the judicial authorities; according to the Government, this is just one of the
opinions in which the Working Group has been wrong in its interpretation of national law.
68.
Mr. Gasparini Ferbans was arrested on 25 March 2020, at night, by officials of the
Directorate General of Military Counter-Intelligence legally authorized to make the arrest by
the competent authority, before whom Mr. Gasparini Ferbans was brought after his arrest
within the legally established time limit, in full compliance with article 9 (3) of the Covenant.
These facts contradict the claims made by the source.
69.
At the time of the arrest, officials of the Directorate General of Military Counter-
Intelligence notified Mr. Gasparini Ferbans of the reasons for his arrest and his rights under
the Constitution, national law, the Universal Declaration of Human Rights, the Covenant and
other applicable instruments. Upon arrival at the headquarters of the Directorate General of
Military Counter-Intelligence, a record that Mr. Gasparini Ferbans had been notified of his
rights as a defendant was drawn up and signed by Mr. Gasparini Ferbans and marked with
his fingerprints.
70.
On 27 March 2020, Mr. Gasparini Ferbans 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 Organic Code of Criminal Procedure. This
hearing was held within 48 hours of the arrest, as required by the Constitution and the Organic
Code of Criminal Procedure and in compliance with article 9 (3) of the Covenant. The hearing
was conducted in accordance with all due process guarantees and with respect for the
legitimate right to a defence. During the hearing, Mr. Gasparini Ferbans waived his right to
appoint a lawyer of his choice and was therefore assisted free of charge by a public defender,
contrary to the source’s false allegations.
71.
Mr. Gasparini Ferbans chose not to make a statement, as is his right under article 49
(5) of the Constitution and article 14 (3) (g) of the Covenant. At the hearing, Mr. Gasparini
Ferbans was charged with the offences of conspiracy against the political system, which is
established in and punishable under article 132 of the Criminal Code, and criminal
association, which is established in and punishable under article 37 of the Organic Act on
Organized Crime and the Financing of Terrorism. The Court authorized his pretrial detention
and ordered that ordinary proceedings be instituted against him. The Government notes that
both the imposition of pretrial detention and the notification thereof complied with all legal
requirements under national law and with the Universal Declaration of Human Rights and
the Covenant.
72.
The Government again provides the details of each and every legal proceeding
conducted during the trial of Mr. Gasparini Ferbans, including a transcript of his oral
statement.
73.
The Government affirms that, unlike the source, which has presented no evidence
beyond its own assertions, the State has provided the Working Group with evidence (arrest
warrant, record of notification of rights and transcript of the preliminary hearing) that
confirms that Mr. Gasparini Ferbans’ human rights were respected during the proceedings
related to his arrest.
74.
The opening hearing of the public trial against Mr. Gasparini Ferbans was held on 23
August 2022, and the hearing continued on 6 and 15 September 2022, in accordance with
article 326 of the Organic Code of Criminal Procedure. Mr. Gasparini Ferbans is currently
being held in court-ordered detention at the Simón Bolívar New Men Training Centre, in the
context of criminal proceedings brought against him in connection with his alleged
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involvement in serious offences under Venezuelan law. The case is currently at the trial
phase.
75.
Mr. Gasparini Ferbans has had full freedom to arrange his defence or change counsel
at his convenience, and his defence lawyers have had full access to the case file, have been
able to make any and all requests they deem appropriate and have received responses to their
requests from the court in accordance with the law. The Government has attached three
annexes in which the changes of counsel arranged by the defendant can be verified.
76.
At all times, the conditions of detention of Mr. Gasparini Ferbans have been found to
be in accordance with the Constitution and applicable national and international standards,
including in terms of access to sanitary facilities. The conditions of his detention were
verified during a visit by representatives of the Office of the United Nations High
Commissioner for Human Rights, who were able to talk confidentially with the detainees,
including Mr. Gasparini Ferbans, and check that their rights were being respected. The Office
has not raised any concerns about the personal safety of Mr. Gasparini Ferbans with the State
party following these visits.
77.
The Government lists the various occasions on which the authorities have ensured the
medical attention required by Mr. Gasparini Ferbans and allowed him to communicate with
and receive visits from his family and lawyers during his time in detention.
78.
The Government affirms that the detention of Mr. Gasparini Ferbans cannot be
considered arbitrary under category I since it was carried out on the basis of article 44 of the
Constitution, articles 236 et seq. of the Organic Code of Criminal Procedure, the Universal
Declaration of Human Rights, the Covenant and other applicable instruments. There is a legal
basis for the detention.
79.
Moreover, the detention of Mr. Gasparini Ferbans cannot be considered arbitrary
under category III because every stage of the criminal proceedings has been conducted in
strict compliance with due process guarantees and the principles of fair trial and impartiality,
as recognized in articles 10 and 11 of the Universal Declaration of Human Rights and articles
9 and 14 of the Covenant and in other human rights treaties currently in force, without there
being any total or partial non-observance of applicable international standards of such gravity
as to give the deprivation of liberty an arbitrary character, since all phases of the proceedings
have been conducted without undue delay. The delay in the proceedings is justified by the
complexity of the matter.
80.
The legal proceedings against Mr. Gasparini Ferbans commenced on 27 March 2020
and have continued without major interruption, except during the period from March to
August 2020 when legal activities were suspended throughout the country, as they were in
much of the world, owing to the COVID-19 pandemic. The judicial authorities have tried to
guarantee the continuity and promptness of the proceedings, in spite of the complexity of the
matter. Under no circumstances can it be concluded that there has been an undue or
unjustified delay. Contrary to the claims made by the source, the public trial of Mr. Gasparini
Ferbans has already begun and is in full swing before the court hearing the case.
81.
The source has turned to the Working Group to invoke a series of untruthful
allegations, none of which was made in a timely manner during the criminal proceedings
against Mr. Gasparini Ferbans, thereby seeking to confuse and divert the attention of the
Working Group. Furthermore, the source’s claims that the court hearing the case ignored the
multiple injuries that Mr. Gasparini Ferbans has allegedly suffered are false, because, as has
been demonstrated, his human right to health has been guaranteed at all times, with the
transfers and care requested by his private defence counsel being granted in a timely manner.
82.
The Government concludes by requesting the Working Group to close the present case
in the light of the ample information and explanations provided by the State, informs the
Human Rights Council of the foregoing for its information and indicates that 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 Procedures Mandate Holders of the Human Rights Council.
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11
Deliberations
83.
The Working Group thanks the source and the Government for their submissions.
84.
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 the
international law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations.14
85.
The Working Group reiterates that it has consistently refrained from taking the place
of the national judicial authorities or acting as a kind of supranational tribunal when it is
urged to review the application of national law by the judiciary.15
Category I
Absence of an arrest warrant
86.
The source states that Mr. Gasparini Ferbans was arrested on 18 March 2020, when a
group of armed men, who did not identify themselves, physically assaulted him and forced
him into a van without an arrest warrant and without informing him of the charges against
him or of his rights. Mr. Gasparini Ferbans was then taken to an unknown location where he
was tortured for nine days. Subsequently, he was transferred to the Directorate General of
Military Counter-Intelligence in Boleíta.
87.
The Government claims that Mr. Gasparini Ferbans was arrested at a later date,
specifically on 25 March 2020, at night, by officials of the Directorate General of Military
Counter-Intelligence. At the time of the arrest, the officials notified Mr. Gasparini Ferbans
of the reasons for his apprehension and of his rights, contrary to the claims made by the
source. On his arrival at the headquarters of the Directorate General of Military Counter-
Intelligence, a record stating that Mr. Gasparini Ferbans had been notified of his rights as a
defendant was drawn up, signed by Mr. Gasparini Ferbans and marked with his fingerprints.
88.
The Government presents in its defence an arrest warrant dated 25 March 2020
ordering the arrest of Mr. Gasparini Ferbans for the alleged offences of conspiracy against
the political system, established in and punishable under article 132 of the Criminal Code,
and criminal association, established in and punishable under in article 37 of the Organic Act
on Organized Crime and the Financing of Terrorism. In addition, the Government has
attached a photocopy of the record stating that Mr. Gasparini Ferbans was notified of his
rights as a defendant, which bears two fingerprints attributed to Mr. Gasparini Ferbans and
his signature.
89.
The source has provided the Working Group with notarized copies of documents
associated with the legal proceedings, including the complaint filed by Mr. Gasparini
Ferbans’ family on 20 March 2020 with the Scientific, Criminal and Forensic Investigation
Unit, which indicates that he disappeared on 18 March 2020, and the same complaint
submitted to the Public Prosecution Service. The source has also submitted evidence
collected by the detectives who opened the investigation, copies of proof of Mr. Gasparini
Ferbans’ location and photographs of the marks left by the torture to which he was subjected.
90.
Having examined both versions of the events, the Working Group considers that the
source has established a credible case that Mr. Gasparini Ferbans was detained and subjected
to enforced disappearance for nine days, which prompted his family to initiate a widespread
search for him and to file a complaint about the events.
91.
The Working Group reiterates that, in order to prevent an arrest from becoming
arbitrary, it is not sufficient that there is a law which may authorize the arrest: the competent
judicial authority must invoke that legal basis and apply it to the case through an arrest
warrant.16
14 A/HRC/19/57, para. 68.
15 Opinion No. 40/2005.
16 Opinions No. 45/2019, para. 51, No. 44/2019, para. 52, No. 46/2018, para. 48, and No. 36/2018, para.
40.
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92.
In the present case, the agents of the Directorate General of Military Counter-
Intelligence who arrested Mr. Gasparini Ferbans were not wearing their uniforms at the time
of arrest, according to Mr. Gasparini Ferbans’ family, and the arrest took place on the date
indicated by the source, as is confirmed by the report that Mr. Gasparini Ferbans’ family filed
regarding his disappearance.
93.
The Working Group is therefore convinced that the aforementioned agents did not
present a warrant for the arrest of Mr. Gasparini Ferbans, in violation of articles 3 and 9 of
the Universal Declaration of 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. They also failed to comply with their duty to inform Mr. Gasparini Ferbans
of the reasons for his arrest and did not make him aware of the judicial avenues for
challenging the lawfulness of his deprivation of liberty, in violation of articles 9 (2) and 14
(3) of the Covenant.17
Enforced disappearance and torture
94.
The Working Group is convinced that Mr. Gasparini Ferbans was subjected to
enforced disappearance for nine days, during which time he was held incommunicado and
tortured. It reiterates that both the Working Group and other international human rights
mechanisms have stated that holding persons 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 is also a violation of the right to an effective remedy under article 2 (3) of the
Covenant and article 8 of the Universal Declaration of Human Rights.
95.
The Working Group emphasizes that incommunicado detention in an unknown
location amounts to prima facie enforced disappearance.18 In the present case, Mr. Gasparini
Ferbans was removed from the protection of the law for nine days. The Working Group
reiterates that enforced disappearance violates numerous substantive and procedural
provisions of the Covenant and constitutes a particularly aggravated form of arbitrary
detention. 19 The Working Group has therefore decided to refer the present case to the
Working Group on Enforced or Involuntary Disappearances.
96.
The Working Group also notes the fact that, when Mr. Gasparini Ferbans’ family
managed to visit him, he was found to have cigarette burns on his hands, scars from cuts on
his wrists, black eyes and broken teeth.
97.
Moreover, according to the source, during the first few days of Mr. Gasparini Ferbans’
detention, he was held in the “house of dreams”, a punishment cell in one of the basements
of the Directorate General of Military Counter-Intelligence. The day before a United Nations
mission arrived to check detention conditions, he was moved to another cell. However, once
the mission of the Office of the United Nations High Commissioner for Human Rights had
left, Mr. Gasparini Ferbans was returned to the “house of dreams” and, subsequently, he was
transferred to the “doll’s house”, another space used for torture, where he could neither stand
nor sit for three days. The source reports that the mission of the Office of the High
Commissioner found Mr. Gasparini Ferbans in a very fragile state of health, with a high fever
and symptoms of COVID-19.
98.
The acts of torture to which Mr. Gasparini Ferbans was subjected, which were not
investigated by the authorities, as demonstrated by the source, violate 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.
99.
Incommunicado detention, especially during the early stage of an investigation, is a
situation conducive to torture and cruel or inhuman treatment, as it may be used to coerce the
detainee to confess to alleged offences and admit guilt. It may also be considered as
17 A/HRC/30/37, annex, principle 7.
18 Opinions No. 20/2020, para. 80, No. 19/2019, para. 34, and No. 76/2017, para. 59.
19 Human Rights Committee, general comment No. 35 (2014), para. 17. See also A/HRC/16/48/Add.3
and opinions No. 41/2020, para. 61, No. 11/2020, para. 41, No. 6/2020, para. 43, and No. 5/2020,
para. 74.
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amounting to a form of torture or ill-treatment per se and as such is prohibited under article
7 of the Covenant and articles 1 and 16 of the Convention against Torture. The Working
Group has therefore decided to refer the present case to the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment.
Lack of individualized assessment
100.
The Working Group is of the view that Mr. Gasparini Ferbans’ pretrial detention was
imposed without regard for the principles of necessity and proportionality and without an
individualized assessment of the case.
101.
The Working Group recalls that article 9 of the Universal Declaration of Human
Rights provides that no one shall be subjected to arbitrary arrest, detention or exile.
Deprivation of liberty is not only a question of legal definition but also of fact, and, as the
Human Rights Committee has established,20 must be justified as reasonable, necessary and
proportionate in the light of the circumstances and must be reassessed with the passage of
time. Having examined and compared the documents submitted, the Working Group
concludes that none of these requirements has been met in the case of the detention of Mr.
Gasparini Ferbans.
102.
In addition to the allegations made by the source in the present case, which have not
been refuted by the Government, the Working Group takes note of the observations in the
report of the independent international fact-finding mission on the Bolivarian Republic of
Venezuela, which states that: “Judges ordered pretrial detention as a routine rather than an
exceptional measure and without providing sufficient or appropriate justification. At times,
judges ordered pretrial detention in Bolivarian National Intelligence Service or Directorate
General of Military Counter-Intelligence facilities, despite the risk of or commission of
torture, even when detainees denounced or displayed signs consistent with torture in
courtrooms.”21 The foregoing reinforces the conclusion reached by the Working Group in the
present case.
103.
Compounding the situation, Mr. Gasparini Ferbans has been denied the possibility of
alternative measures to detention and is being held in pretrial detention despite the appeal
made to States regarding the use of such measures in the context of the COVID-19 pandemic,
and the Government itself has admitted that there has been a delay in the proceedings.
104.
Owing to the gravity of the facts presented by the source and in view of the
Government’s failure to respond satisfactorily to the allegations made, the Working Group
concludes that the detention of Mr. Gasparini Ferbans is arbitrary under category I.
Category III
105.
According to the information received, at the arraignment hearing on 27 March 2020,
Mr. Gasparini Ferbans was charged with the offences of conspiracy against the political
system, established in article 132 of the Criminal Code, and criminal association, established
in article 37 of the Organic Act on Organized Crime and the Financing of Terrorism, in
connection with his supposed participation in an alleged conspiratorial movement against the
Government. This accusation was based on the fact that Mr. Gasparini Ferbans’ mobile
telephone number was found to have been saved in the contacts lists of the mobile telephones
of other persons involved in the alleged conspiracy. According to prosecutors, Mr. Gasparini
Ferbans took care of the legal business of those involved in the conspiracy.
106.
However, on the basis of the investigations conducted and Mr. Gasparini Ferbans’
own confession, it has been established that he met the other defendants while in detention
and that they were tortured in the same places. The Working Group is concerned about the
fact there is effectively no evidence that Mr. Gasparini Ferbans was involved in the offences
with which he has been charged, which would require the mutual acquaintance and a
concurrence of will of the parties, as conspiracy against the political system and criminal
20 General comment No. 35 (2014), para. 18.
21 A/HRC/48/69, para. 112.
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association necessitate a close relationship between the accused - a relationship that has not
been proven by the Government.
107.
The Working Group also notes with concern that, despite the fact that it has been
proven that Mr. Gasparini Ferbans was tortured, the judge in the case ignored his claims and,
at the arraignment hearing, ordered that he be placed in pretrial detention.
108.
A judge’s failure to intervene when allegations of torture are made amounts to a
violation of the right to be tried by an independent and impartial tribunal under article 14 (1)
of the Covenant and of the principle of equality of arms.22 The Working Group recalls the
fundamental importance of judicial independence, with reference to general comment No. 32
(2007) of the Human Rights Committee, which establishes that the requirement of
competence, independence and impartiality of a tribunal in the sense of article 14 (1) is an
absolute right that is not subject to any exception.
109.
Moreover, the admission into evidence of a statement allegedly obtained through
torture renders the entire proceedings unfair, regardless of whether other evidence is available
to support the verdict.23 In such cases, the burden is on the Government to prove that
statements made by the accused were given of their own free will,24 but it has not done so.
110.
The Working Group concludes that, because Mr. Gasparini Ferbans was compelled to
confess, his right to presumption of innocence under article 14 (2) of the Covenant was
violated, as was his right not to be compelled to confess guilt under article 14 (3) (g) of the
Covenant. Intentionally inflicting pain, as well as making threats or putting pressure on a
person in order to obtain a confession, violates articles 2, 13, 15 and 16 of the Convention
against Torture and makes the proceedings inherently unfair and the detention arbitrary.
111.
The Working Group also notes that Mr. Gasparini Ferbans has been deprived of his
liberty in pretrial detention for more than two years. In this regard, the Working Group recalls
that the right of the accused to be tried without undue delay, provided for in article 14 (3) (c)
of the Covenant, is designed not only to prevent persons from being kept in a state of
uncertainty for too long but also to ensure that deprivation of liberty does not last longer than
necessary in the circumstances of the specific case and serves the interests of justice.25 The
Working Group agrees with the Human Rights Committee that, in cases where the pretrial
detention of the accused is ordered, he or she must be tried as expeditiously as possible.26
This did not happen in the case of Mr. Gasparini Ferbans, and the Working Group therefore
finds a violation of article 14 (3) (c) of the Covenant.
112.
In the light of the foregoing, the Working Group concludes that the non-observance
of the international norms relating to the right to a fair trial established in articles 10 and 11
of the Universal Declaration of Human Rights and article 14 of the Covenant is of such
gravity as to give the detention of Mr. Gasparini Ferbans an arbitrary character under
category III.
Concluding observations
116.
This case is one of a number of cases brought before the Working Group in recent
years concerning arbitrary detention in the Bolivarian Republic of Venezuela. 27 In the
Working Group’s view, this is indicative of a systematic practice of depriving people of their
liberty without respecting their rights under international law. Widespread or systematic
22 Opinions No. 53/2018, para. 77, and No. 46/2017, para. 25; A/HRC/28/68/Add.3, para. 56; and
CAT/C/MEX/CO/7, paras. 20 and 21.
23 Opinion No. 73/2019, para. 91, No. 59/2019, para. 70, No. 32/2019, para. 43, No. 52/2018, para. 79
(i), No. 34/2015, para. 28, and No. 43/2012, para. 51.
24 Human Rights Committee, general comment No. 32 (2007), para. 41, and opinions No. 86/2020 and
No. 41/2020.
25 Human Rights Committee, general comment No. 32 (2007), para. 35.
26 Ibid.
27 Opinions No. 73/2020, No. 57/2020, No. 44/2020, No. 20/2020, No. 18/2020, No. 81/2019, No.
80/2019, No. 75/2019, No. 40/2019, No. 39/2019, No. 13/2019, No. 86/2018, No. 72/2018, No.
49/2018, No. 41/2018, No. 32/2018, No. 24/2018, No. 87/2017, No. 84/2017, No. 52/2017, No.
37/2017 and No. 18/2017.
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imprisonment, in violation of the rules of international law, might constitute crimes against
humanity.28
117.
The Working Group would welcome the opportunity to work constructively with the
Government to address problems concerning arbitrary detention and, in the light of the
recurrent pattern of arbitrary detention identified by this international human rights
mechanism in recent years, the Government of the Bolivarian Republic of Venezuela is urged
to consider inviting the Working Group to make an official visit to the country. Such visits
are an opportunity for the Working Group to engage in direct constructive dialogue with the
Government and representatives of civil society, with the aim of better understanding the
situation of deprivation of liberty in the country and the underlying reasons for arbitrary
detention.
Disposition
118.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of John Jairo Gasparini Ferbans, being in
contravention of articles 3, 8, 9, 10 and 11 of the Universal Declaration of Human
Rights and of articles 2, 9 and 14 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I and III.
119.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of Mr. Gasparini Ferbans
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.
120.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Gasparini Ferbans immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law.
121.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Gasparini Ferbans and to take appropriate measures against those responsible for the
violation of his rights. In the current context of the COVID-19 pandemic and the threat that
it poses in places of detention, the Working Group calls upon the Government to take urgent
action to ensure the immediate release of Mr. Gasparini Ferbans.
122.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on Enforced or Involuntary Disappearances and the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
for appropriate action.
123.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
124.
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. Gasparini Ferbans has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Gasparini
Ferbans;
(c)
Whether an investigation has been conducted into the violation of Mr.
Gasparini Ferbans’ rights and, if so, the outcome of the investigation;
28 Opinion No. 47/2012, para. 22.
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(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.
125.
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.
126.
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.
127.
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.29
[Adopted on 14 November 2022]
29 Human Rights Council resolution 51/8, paras. 6 and 9.