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.25-09842 (E) 020925 020925
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 19/2025 concerning Igbert José Marín Chaparro, Víctor
Eduardo Soto Méndez, Juan Carlos Peña Palmieri and Deibis Esteban
Mota Marrero (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 5 March 2024 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Igbert José Marín Chaparro, Víctor Eduardo Soto Méndez, Juan Carlos Peña
Palmieri and Deibis Esteban Mota Marrero. The Government replied to the communication
on 6 June 2024. 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/2025/19
General Assembly
Distr.: General
27 June 2025
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).
1.
Submissions
(a)
Communication from the source
4.
Igbert José Marín Chaparro, Víctor Eduardo Soto Méndez, Juan Carlos Peña Palmieri
and Deibis Esteban Mota Marrero are nationals of the Bolivarian Republic of Venezuela who
are serving lieutenant colonels in the Bolivarian Army.
(i)
Context
5.
According to the source, since 2013 the Government has repeatedly denounced
alleged coups d’état and conspiracies, singling out and detaining military officers of varying
ranks for treason, rebellion and breaches of military decorum. The purge intensified in
February 2018, when 11 soldiers were dismissed and 13 officers were demoted for alleged
treason; days later, 9 members of the military were brought before the military courts for
instigating a rebellion. By November 2018, at least 163 members of the military were in
prison for political reasons, mostly on charges of treason and rebellion. Of those individuals,
116 had been arrested that same year, meaning that they accounted for 71 per cent of military
personnel who were being held in detention on political grounds in 2018.
(ii)
Arrest and detention
Mr. Marín Chaparro
6.
On 2 March 2018, Mr. Marín Chaparro was detained at the facilities of the General
de Brigada Juan Pablo Ayala Motorized Cavalry Squadron No. 312 by a group of officers
from the Directorate General of Military Counter-Intelligence in Boleíta Norte (Caracas).
Upon his arrival at the main headquarters of the Directorate General of Military
Counter-Intelligence following his arrest, he was “interrogated” with a black hood over his
head while a number of officers kicked him and beat his head, calves and back with sticks.
The officers put tear gas in his eyes and nostrils to asphyxiate him while he was wearing the
hood. They threatened to harm his family if he did not answer their questions. He was then
transferred to the headquarters of the Ministry of Defence in order to be interviewed by the
Minister of Defence (General-in-Chief), the General Commander of the Army (Major
General) and the Director of the Directorate General of Military Counter-Intelligence (Major
General) so that they could learn what had motivated him to allegedly instigate a rebellion.
7.
The arrest was made without an arrest warrant. Mr. Marín Chaparro was unable to
make telephone calls to his family or trusted lawyers. After the interview, he was returned to
the headquarters of the Directorate General of Military Counter-Intelligence in Boleíta in
order to be imprisoned.
8.
On 7 March 2018, five days after his arrest, the Military Prosecutor’s Office No. 7,
which has national jurisdiction, requested the arrest warrant from the Military Court of Due
Process No. 3 in Caracas, accusing Mr. Marín Chaparro of being involved in “conspiratorial
acts and the plotting of terrorist activities”. On 9 March 2018, seven days after his arrest,
Mr. Marín Chaparro was brought before the Military Court of Due Process No. 3 in Caracas.
9.
During his detention, Mr. Marín Chaparro was subjected to cruel treatment, facing
prolonged solitary confinement, malnutrition, a lack of medical care, overcrowding and
unsanitary conditions. On 1 January 2020, he was transferred to the “casa de los sueños” (the
dream house), which is a unit of cells with no ventilation or natural light, where he was under
constant surveillance and was exposed to carbon monoxide.
10.
Mr. Marín Chaparro suffers from several untreated conditions, including pulmonary
fibrosis caused by the coronavirus disease (COVID-19), two hernias, varicocele,
musculoskeletal problems and chronic pain.
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Mr. Soto Méndez
11.
On 2 March 2018, Mr. Soto Méndez was arrested by officers from the Directorate
General of Military Counter-Intelligence and taken to its offices in Barinas. At the time of
the arrest, the officers mentioned that there was an investigation under way and stated that he
was being arrested on superior orders, without informing him of the reasons why.
12.
On 3 March 2018, he was taken in a plane owned by the Directorate General of
Military Counter-Intelligence to the Directorate’s headquarters in Caracas, where he was held
incommunicado for 24 hours a day and kept on a chair with his hands behind his back in
handcuffs. In addition to being tortured through the application of tear gas while he was
wearing a hood covering his head and face, which led to burns on his face and scalp, he was
humiliated and subjected to cruel, inhuman and degrading treatment. His ankles were also
repeatedly beaten with a metal rod. He was informed of the reasons for his detention seven
days after his arrest, when he was brought before the Military Court of Due Process No. 3 in
Caracas for an oral arraignment hearing.
13.
Mr. Soto Méndez, who suffers from hypertension and kidney stones, has not received
adequate medical care in the five years that he has been detained.
Mr. Peña Palmieri
14.
On 2 March 2018, Mr. Peña Palmieri was at the Libertador Simón Bolívar Institute of
Tactical and Strategic Operations of the Bolivarian National Armed Forces in Caracas, where
he was pursuing a master’s degree, when the Institute’s director asked Mr. Peña Palmieri to
accompany him to his office. Three officers from the Directorate General of Military
Counter-Intelligence were there waiting for him. One of the officers asked him for his identity
card, his military identity card and his mobile telephone, told Mr. Peña Palmieri to follow
him, without presenting any type of arrest warrant, and placed handcuffs on Mr. Peña
Palmieri’s wrists. They then walked to the car park where the vehicle that was going to
transport them was located.
15.
Mr. Peña Palmieri was taken to the headquarters of the Directorate General of Military
Counter-Intelligence in the capital region, where he was stripped of his valuables and
remained until 3 March 2018. On the afternoon of 3 March, he was transferred, together with
Mr. Marín Chaparro and the other members of the class of 1999, to the main headquarters of
the Directorate General of Military Counter-Intelligence in Boleíta Norte (Caracas). Upon
arrival at the main headquarters, the individuals were informed that they would be
interrogated. They were taken to a dark room where four hooded officers from the Directorate
blindfolded them, put a hood over them, handcuffed them with their hands behind their backs
on the floor, mechanically asphyxiated them and beat them while “interrogating” them about
an alleged coup d’état that a group of army lieutenant colonels, all from the same class, were
seeking to carry out through a movement known as “Transición a la Dignidad del Pueblo”
(Transition to the Dignity of the People). The officers wanted to force the individuals to plead
guilty and implicate their peers, but the individuals refused to do so and did not sign any
statements.
16.
Despite the torture, Mr. Peña Palmieri did not immediately undergo a forensic medical
examination. He was first examined on 9 March 2018, when it was concluded that he had no
“external injuries to note”.
17.
He was then transferred to the headquarters of the Ministry of Defence in order to be
interviewed by the Minister of Defence (General-in-Chief), the General Commander of the
Army (Major General) and the Director of the Directorate General of Military
Counter-Intelligence (Major General) so that they could ascertain what had motivated him to
commit the alleged acts of which he had been accused.
18.
On 3 March 2018, a relative of Mr. Peña Palmieri received an anonymous telephone
call during which he was told that Mr. Peña Palmieri was being held at the Directorate
General of Military Counter-Intelligence in Caracas. The relative thus travelled from San
Cristóbal to Caracas to enquire about Mr. Peña Palmieri’s whereabouts and the reasons for
his detention. The relative’s repeated visits to the Directorate General of Military
Counter-Intelligence were futile, since he was not given any access to the detainee.
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19.
Mr. Peña Palmieri could not make telephone calls to his family or trusted lawyers. It
was not until 8 March 2018 that he was able to call his relative and inform him that he would
appear before the military courts in Caracas the following day. In other words, it took six
days after the arrest for the family to learn that Mr. Peña Palmieri was alive.
Mr. Mota Marrero
20.
At 6 p.m. on 2 March 2018, Mr. Mota Marrero was in the facilities of his military unit
when he received a telephone call from the Brigadier General, who was the commander of
Armoured Brigade No. 41 in the municipality of Naguanagua in the State of Carabobo, to
tell Mr. Mota Marrero to report to his office. Mr. Mota Marrero went to the office and was
questioned about his alleged participation in a meeting of persons conspiring against the
Government.
21.
The Brigadier General proceeded to call a group of officers from the Directorate
General of Military Counter-Intelligence, in line with the instructions he had received by
telephone from the General Commander of the Army. The officers from the Directorate
General of Military Counter-Intelligence arrested Mr. Mota Marrero without an arrest
warrant. They took him to the Directorate’s office within the command of the General de
División Pedro León Torres Armoured Battalion No. 413 and confiscated his telephone and
personal and work documents. Mr. Mota Marrero was subsequently taken to the Directorate’s
offices in the State of Carabobo.
22.
On 3 March 2018, Mr. Mota Marrero’s relatives learned that he was being held in
detention and went to the offices of the Directorate General of Military Counter-Intelligence
in Valencia, where they received confirmation of that fact. On 4 March, Mr. Mota Marrero
was transferred, against his will and without notice being given to his relatives, from Valencia
to the Directorate’s main headquarters in Boleíta, Caracas. It was there that the psychological
and physical torture at the hands of officers from the Directorate’s investigation department
began.
23.
On 4 March 2018, upon Mr. Mota Marrero’s arrival at the headquarters of the
Directorate General of Military Counter-Intelligence in Boleíta, the officers handcuffed him
with his arms behind his back and subjected him to obscene insults, profanity and blows. He
received no food or water, was forced to sit handcuffed all day and had no sleep at night. An
officer would beat him if he tried to move or fall asleep.
24.
On 5 March 2018, Mr. Mota Marrero was placed in solitary confinement in a cell
measuring 2 m². He was handcuffed and beaten by officers from the Directorate General of
Military Counter-Intelligence while wearing a black hood to prevent him from identifying
them. He kept track of time through the daily military calls. On 6 March, he was taken,
handcuffed and hooded, to an interrogation room, where he was brutally beaten on his head,
ribs and ankles, leading to injuries and severe pain, and subjected to psychological abuse.
25.
On 7 March 2018, he was again placed in solitary confinement in a cell measuring
2 m². He was beaten and prevented from sleeping. On 8 March, he was transferred to “La
Pecera” (the fish tank), which is a room monitored by cameras, where he was kept handcuffed
on a stool in order to cause him pain. On 9 March, the torture continued. That same day, a
“complicit” doctor was brought in to falsify a forensic report. Mr. Mota Marrero calls the
doctor “complicit” because, although he asked the doctor to examine and record his torture
wounds, the doctor would not look at him and simply filled out a form.
26.
In the criminal investigation report dated 8 March 2018, it was noted that the
Directorate General of Military Counter-Intelligence had received the arrest warrants issued
on 7 March 2018 by the Military Court of Due Process No. 3 in Caracas.
27.
On 9 March 2018, seven days after their arrest, the four individuals were brought
before the Military Court of Due Process No. 3 in Caracas and forced to sign a document
confirming that they had been notified of their rights as defendants, which bore a different
date to that of their arrest. At the arraignment hearing, they were charged with the following
crimes under the Code of Military Justice: treason, instigation of rebellion and breach of
military decorum. All of the individuals were charged as perpetrators of those crimes.
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28.
The defendants were allowed to have private counsel at this hearing. That is to say,
the four individuals were not given access to a trusted lawyer until seven days after their
detention. The detainees’ counsel raised complaints regarding the torture to which they were
subjected, which were ignored by the court. The detainees showed obvious signs of torture;
Mr. Soto Méndez, in particular, had bruises on his wrists and burns on his face and scalp.
29.
The use of pretrial detention was also denounced as inappropriate and unlawful, but
the court nonetheless confirmed the measure and ruled that the detainees should be held in
pretrial detention in the West Wing for Military Prisoners (located in Santa Ana in the State
of Táchira). However, the aircraft in which the detainees were being transported was
intercepted by a group of officers from the Directorate General of Military
Counter-Intelligence, who arbitrarily removed Mr. Marín Chamorro and took him to the
Directorate’s facilities in Boleíta, in violation of the court’s ruling.
30.
On 10 March 2018, the four individuals were transferred to the National Centre for
Military Detainees to be held in unit B, which is reserved for political prisoners.
31.
The four individuals were not brought before the court for a preliminary hearing once
the 45-day deadline for conducting investigations elapsed. Instead, they appeared before the
court five months later, in August 2018.
32.
In 2020, the declaration of the COVID-19 pandemic meant that the criminal
proceedings did not move forward. Over the course of those two years, the defence filed all
the appeals necessary, appealing the outcomes of both the arraignment and preliminary
hearings, but always received negative responses from the court.
33.
The trial began in November 2020. The prosecutor confirmed the charges relating to
the alleged coup d’état on the basis of a video and meetings held in military facilities.
34.
On 12 November 2020, at a trial hearing, a colonel testified that Mr. Marín Chaparro
was leading a suspected conspiratorial movement. This witness had also been detained and
beaten by the Directorate General of Military Counter-Intelligence. On 23 November,
Mr. Marín Chaparro denounced the torture to which he had been subjected and, on
16 December 2020, denied any involvement in the conspiracy. That same day, he was
sentenced, together with the three other defendants, to 7.5 years’ imprisonment for instigating
a military rebellion, even though there was no evidence to justify that charge. The judgment
was published on 29 January 2021.
35.
On 11 February 2021, the defence appealed the judgment before the Military Trial
Court No. 1 in Caracas. On 21 July, the Military Appeal Court overturned the conviction
owing to the lack of a legal basis and ordered a new trial.
36.
On 1 September 2021, the case was taken up by the Criminal Chamber of the Supreme
Court of Justice, which, on 29 September, overturned the judgment issued on 21 July by the
Military Appeal Court and ordered a new trial to be conducted without the flaws highlighted
in the appeals filed by the defence.
37.
Pursuant to that order, the Military Appeal Court of the Military Criminal Judicial
District, which has national jurisdiction and is headquartered in Caracas, was convened for
the purpose of issuing a new judgment in connection with the case. The individual who was
appointed as presiding judge was the same person who had been Military Attorney General
during the initial stages of the proceedings. That individual failed to honour his obligation to
recuse himself, ignoring the defence lawyers’ complaints and appeals.
38.
On 11 May 2022, the Military Appel Court rejected the appeal and confirmed the
sentence of 7.5 years’ imprisonment for instigation of rebellion. The defence filed an appeal
in cassation within the legal time frame.
39.
On 17 February 2023, the Criminal Chamber of the Supreme Court of Justice
dismissed the appeals in cassation and confirmed the sentence of 7.5 years. On 26 April, it
was communicated that the sentence was being executed and that parole would be possible
once the detainees had served three quarters of the sentence, which was a point they reached
on 24 October 2023.
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40.
Since May 2022, the four detainees have not received the psychosocial examinations
they are required to undergo in order to qualify for parole. Mr. Marín Chaparro’s defence
requested such an examination but did not receive a response. To date, the examinations have
not been performed, presumably owing to superior orders concerning the handling of cases
of a political nature.
41.
Unlike other military personnel, Mr. Marín Chaparro has not had his sentence reduced
in recognition of the work he has done, including as a teacher and barber.
42.
Mr. Marín Chaparro reached the three-quarter mark of his sentence on 24 October
2023, which means that he qualifies for parole. His sentence will have been served in full in
September 2025.
43.
As his release on parole and the end of his sentence approached, on 24 January 2024,
it was claimed on a television programme entitled “Con El Mazo Dando” that Mr. Marín
Chaparro was involved in a new conspiracy.
44.
On the night of 1 February 2024, Mr. Marín Chaparro was suddenly and clandestinely
brought before the Special Procedural Court of First Instance No. 2, which has national
jurisdiction over terrorism-related cases and sitting at the headquarters of the Directorate
General of Military Counter-Intelligence. His trusted lawyers were not permitted to attend
despite his express request to that end. He was forced to receive assistance from a public
defender, under the surveillance of several heavily armed officials.
45.
Prosecutor No. 67 charged him with the crimes of association, terrorism, treason and
conspiracy and issued a new detention order.
46.
It is implausible that Mr. Marín Chaparro could circumvent the strict controls in place
in the maximum security centre in which he is being held and participate in activities that are
off-limits to him.
47.
On 19 February 2024, Mr. Marín Chaparro was transferred to the Rodeo I detention
centre, where he remains in an individual cell with no drinking water or sanitation.
(iii)
Legal analysis
48.
The source states that the detentions of the four individuals are arbitrary under
categories I and III of the Working Group.
a.
Category I
49.
On 2 March 2018, the officers from the Directorate General of Military
Counter-Intelligence did not present any judicial orders that had been issued by the competent
body in order to authorize the arrest of the four individuals.
50.
As noted in the criminal investigation report prepared by the Directorate General of
Military Counter-Intelligence on 5 March 2018, these officers had been conducting
investigations into the alleged conspiracy to overthrow the Government. It was on that date
that they instructed the Military Prosecution Service to order the respective arrest warrants.
51.
On 7 March 2018, five days after the arrest, military prosecutors requested an arrest
warrant for the four individuals from the Military Court of Due Process No. 3.
52.
Until that point, the four individuals had not been aware of the charges they were
facing. The arbitrary nature of the detention is proven by a report issued by the Director of
the National Centre for Military Detainees, which indicates that one of the detainees,
Mr. Mota Marrero, was arrested on 2 March 2018, and that the arrest was not, as stated in the
police records, carried out following the issuance of a court order on 7 March 2018.
53.
According to the International Convention for the Protection of All Persons from
Enforced Disappearance, disappearance is a multidimensional offence that occurs when there
is a conjunction of three factors: (a) deprivation of liberty; (b) direct intervention by, or
acquiescence of, agents of the State; and (c) a refusal to acknowledge the detention or
concealment of the fate or whereabouts of the person. These factors apply in the present case.
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54.
On 9 March 2018, seven days after their arrest, the four individuals were brought
before the Military Court of Due Process No. 3 in Caracas and forced to sign a document
confirming that they had been notified of their rights as defendants, which bore a different
date to that of their actual arrest. For seven days, their families had no knowledge of their
whereabouts.
55.
Although the four individuals reported the torture and cruel, inhuman and degrading
treatment they faced to various State institutions, these institutions did not take steps to
investigate. This failing led the Inter-American Commission on Human Rights to grant
precautionary measures in favour of Mr. Marín Chaparro and Mr. Mota Marrero, but these
measures were not implemented by the Government.2
b.
Category III
56.
The four individuals were arrested on 2 March 2018, the arrest warrant was issued on
7 March (five days later), and they were brought before the court on 9 March (seven days
later), in breach of the provisions of the Code of Criminal Procedure recognizing the right of
accused persons to be brought before a judge within 48 hours of their arrest. After their arrest
on 2 March 2018, they were not shown any arrest warrant – since one did not exist – or
informed of the reasons for their arrest or the factual and legal basis of the charges against
them. That situation arose owing to the fact that it was not until five days after the arrest that
the Military Prosecution Service requested the arrest warrant, which was issued by the
Military Court of Due Process No. 3 in Caracas on the same day.
57.
The individuals’ rights to be heard and to be presumed innocent were not respected,
since the arrest was made based only on rumours and the testimony of a colonel, with no
concrete evidence. In addition, the court did not respond to the defence’s arguments or
guarantee the detainees’ participation in the trial.
58.
None of the four individuals were guaranteed effective access to judicial remedies, as
the Supreme Court of Justice overturned the judgment and took up the case, worsening their
situation by naming as judge the former Military Attorney General, who ignored the
defence’s complaints. The four individuals were tried by a judge who had previously been
the Military Attorney General and the prosecuting party, meaning that he should have recused
himself in the case to ensure impartiality, but did not do so despite the defence’s complaints,
which were ignored.
59.
The four individuals were detained by the Directorate General of Military
Counter-Intelligence without a prosecutor present, before being tortured and subjected to
enforced disappearance. On 9 March 2018 the individuals were brought before the judge,
who ignored the defence’s complaints and the violations of due process, which points to a
breach of articles 9 (3) and 14 of the Covenant.
60.
On 29 September 2021, the Supreme Court of Justice overturned a judgment that was
in the defendants’ favour and ordered the Military Appeal Court to issue a new one, which it
did, upholding the conviction and ignoring the irregularities. The source criticizes the
arbitrary assumption of the case by the higher court, which affects judicial independence and
violates due process and the double-hearing principle. In 2023, the Supreme Court of Justice
rejected the cassation appeals without examining them, thus adding to the violations of
judicial guarantees.
(b)
Response from the Government
61.
The Working Group, in accordance with its methods of work, transmitted the source’s
allegations to the Government of the Bolivarian Republic of Venezuela on 5 March 2024 and
requested it to submit a response by 6 May 2024. The Government requested, and was
granted, an extension of the deadline for providing its response. The Working Group received
the Government’s response on 6 June 2024, within the established time limit.
2 Resolution 9/2019, precautionary measure No. 1302-18, 4 March 2019; and resolution 61/2022,
precautionary measure No. 54-22, 31 October 2022.
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62.
The Government indicates that the criminal proceedings against the four individuals
are linked to their involvement in a military movement conspiring against the Government.
The Military Prosecution Service requested the arrest warrants, which were approved by the
Military Court of Due Process No. 3 on 7 March 2018.
63.
On 8 March 2018, the four individuals were arrested by officers from the Directorate
General of Military Counter-Intelligence, who notified them of the reasons for their arrest
and their rights, in accordance with the law. On 9 March 2018, the detainees appointed their
private defence lawyers and were brought before the Military Court of Due Process No. 3 for
the arraignment hearing, at which they decided not to testify.
64.
The Military Court of Due Process No. 3 in Caracas provisionally accepted the
charges against the four individuals, namely, instigation of rebellion, treason and crimes
against military decorum. In addition, the detention measure was upheld, and each detainee
was assigned to a different detention centre. All the detainees were notified of the charges
against them within the established legal time frame.
65.
The Military Court of Due Process No. 3 in Caracas examined whether the
requirements for pretrial detention had been met, taking into consideration the punishable
acts, the evidence and flight risk or risk that the investigation would be obstructed. This
measure is compatible with article 9 (3) of the Covenant, which authorizes the use of pretrial
detention to ensure that the defendant appears at the trial.
66.
On 9 March 2018, the four individuals underwent a forensic medical examination.
The Military Prosecution Service issued the formal charges. At the preliminary hearing,
which was held in July and August 2018, the defendants decided not to testify. The court
accepted some of the charges, namely, instigation of rebellion and crimes against military
decorum, and ordered the dismissal of the treason charges. It upheld the pretrial detention
measure and ordered that an oral trial be held.
67.
On 6 February 2019, Mr. Peña Palmieri’s defence requested the use of an alternative
to detention, but the request was declared inadmissible by the Military Appeal Court on
14 February. On 9 November 2020, the defendants’ oral trial began before the Military Trial
Court No. 1 in Caracas. It consisted of seven sessions, some of which were suspended owing
to transport problems and the absence of the defence team. In all the sessions, the defendants
and their defence lawyers were given the opportunity to express their views.
68.
It was not until more than two years after the trial that the defendants alleged human
rights violations, such as torture and incommunicado detention, and this fact must be taken
into account when examining the credibility of their claims. On 16 December 2020, the
Military Trial Court No. 1 convicted the defendants of the crime of instigating a rebellion
and sentenced them to a term of imprisonment of 7 years and 6 months, with accessory
penalties. They were acquitted of the crimes against military decorum.
69.
On 29 January 2021, the individuals appealed this judgment. The Military Appeal
Court admitted the appeals on 17 May 2021 and, on 28 July 2021, overturned the judgment,
ordering a retrial with different judges. The pretrial detention measure was upheld, and it was
agreed that Mr. Marín Chaparro could be transferred from his then place of detention to the
headquarters of the Libertador José San Martín Military Police Brigade No. 35 in Fuerte
Tiuna.
70.
On 2 September 2021, the Criminal Appeals Division suspended the case and ordered
the transfer of the case file. On 14 March 2022, the Criminal Appeals Division reactivated
the case and, on 21 March 2022, the Military Appeal Court set the appeal hearing for
29 March that year.
71.
On 29 March 2022, the four individuals’ appeal was heard by the Military Appeal
Court. During the trial, the defendants and their defence lawyers were given the opportunity
to express their views. The Court instructed the Public Prosecution Service to investigate the
acts of torture and cruel and inhuman treatment to which Mr. Marín Chaparro, Mr. Soto
Méndez and Mr. Mota Marrero had allegedly been subjected in March 2018. The fact that
Mr. Peña Palmieri did not claim to have been subjected to human rights violations must be
considered when assessing the credibility of the allegations.
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72.
On 11 May 2022, the Military Appeal Court rejected the four individuals’ appeals and
upheld the original decision. On 9 June 2022, in the presence of the four individuals, the
decision issued by the Court on 11 May 2022 following the appeal hearing was read out.
73.
In October 2022, the defence lawyers filed an appeal in cassation, which was
dismissed by the Criminal Appeals Division of the Supreme Court of Justice on 1 December
2022. That decision was confirmed on 17 February 2023. Lastly, on 26 April 2023, the
Military Sentence Enforcement Court No. 1 executed the sentence, handing the defendants a
term of imprisonment of 7 years and 6 months, in addition to the penalties of political
disqualification and separation from service until September 2025.
74.
In the execution order, it was established that the four individuals’ prison sentence
could not be suspended since it exceeded 5 years. The gravity of their offences means that
they are also ineligible for alternative measures. Furthermore, the case file shows that the
defence lawyers requested medical assistance and hospital transfers, which were approved
by the court.
75.
On 30 January 2024, a warrant was issued for the arrest of Mr. Marín Chaparro for
the crimes of treason, conspiracy and terrorism, in connection with a purported plot to
assassinate the President and other authorities. In December 2023, material implicating him
was found during a search of his cell. He was brought before the court on 1 February 2024
with his assigned public defender.
76.
The Special Procedural Court of First Instance No. 2 accepted the charges against
Mr. Marín Chaparro and ordered that he be kept in pretrial detention in the criminal detainee
centre and women’s wing of the Caracas metropolitan area maximum security centre II. On
19 February 2024, he was transferred to the Rodeo I special maximum security centre.
77.
On 15 March 2024, the Public Prosecution Service submitted the indictment. On
8 April, Mr. Marín Chaparro’s defence requested that the case be dismissed. At the
preliminary hearing on 30 April, Mr. Marín Chaparro and his defence had the opportunity to
express their views before the court.
78.
At the preliminary hearing, the court accepted the charges brought by the Public
Prosecution Service against Mr. Marín Chaparro, in addition to all the evidence. The pretrial
detention measure was kept in place, and a public oral trial was ordered.
(c)
Additional comments from the source
79.
In its additional comments, the source alleges that, while it was indicated in the
response submitted by the Government that the request for an arrest warrant for the four
individuals was submitted and accepted by the military court on 7 March 2018, this occurred
after the arrest, which was made on 2 March 2018 by officers from the Directorate General
of Military Counter-Intelligence. In other words, the arrest was made without an arrest
warrant.
80.
The late issuance of the arrest warrant is evident from the criminal investigation report
of 5 March 2018. In addition, in the criminal investigation report of 8 March 2018, it was
noted that, on the orders of a colonel, a captain had recorded the receipt by the Directorate
General of Military Counter-Intelligence of the arrest warrants on 7 March 2018. The
Government, for its part, fails to mention that, during the forensic examinations conducted
on the defendants, it was noted that the date of the event (referring to the arrest) was 2 March
2018.
81.
Reports of the arbitrary detention of the individuals had already been circulated
through social media and other media in the days prior to the date on which the Government
claims that the arrest warrants were requested and issued.
82.
The Government stated that the defendants and their defence lawyers were given the
opportunity to express their views at the arraignment hearing but decided not to testify. This
statement is false, as demonstrated by the reasoned order of 9 March 2018, in which the acts
of torture committed at the headquarters of the Directorate General of Military
Counter-Intelligence in Boleíta, which were ignored by the court, are denounced. Although
the defendants did not testify, their lawyers denounced serious human rights violations, which
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were also disregarded by the court. During the hearing, the victims showed obvious signs of
torture, such as bruises and burns. The fact that the judges ignored the allegations of torture
that they were supposed to investigate constitutes a serious violation of due process and
makes them complicit in human rights violations.
83.
The Government minimizes the victims’ complaints of torture by stating that it took
two years for them to make such complaints. This is false, since the complaints were first
raised during the investigation phase.
84.
While the Government stated that the convicted individuals were not eligible for
alternative measures owing to the gravity of their crimes, the execution order of 26 April
2023 does in fact recognize that such measures could be applied provided that the
requirements of article 488 of the Code of Criminal Procedure are met.
85.
With regard to the new criminal investigation into Mr. Marín Chaparro, on 1 February
2024, he was suddenly and clandestinely brought before a special court sitting at the
headquarters of the Directorate General of Military Counter-Intelligence. Although he asked
for his lawyers to be present, this request was denied, and he was assigned a public defender
against his will.
2.
Discussion
86.
The Working Group thanks the source and the Government for their submissions.
87.
In determining whether the deprivation of liberty of the four individuals is arbitrary,
the Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations. Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.3
(a)
Category I
88.
According to the source, the four individuals were arrested on 2 March 2018 without
being presented with arrest warrants or being duly informed of the reasons for their arrest.
The Government, for its part, submits that the Military Prosecution Service requested the
arrest warrants, which were approved by the Military Court of Due Process No. 3 on 7 March
2018, and that the arrests were made on 8 March 2018, in compliance with the law.
89.
The Working Group has previously stated that in order for a deprivation of liberty to
have a legal basis, it is not sufficient that there is a law that may authorize the arrest. The
authorities must invoke that legal basis and apply it to the circumstances of the case. This is
typically4 done through an arrest warrant or a court order, or an equivalent document.5 The
Working Group also 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 the light of the circumstances and must be reassessed as it extends in time.
90.
The Working Group reiterates that anyone who is arrested must be informed, at the
time of arrest, of the reasons for the arrest and the judicial avenues available for challenging
the lawfulness of the deprivation of liberty.6 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 official
basis for the arrest, not the subjective motives of the arresting officer.7 Likewise, detained
persons have the right to be promptly notified of the charges against them.
3 A/HRC/19/57, para. 68.
4 Opinions No. 30/2018, para. 39; No. 3/2018, para. 43; and No. 88/2017, para. 27.
5 Opinions No. 18/2023, para. 93; and No. 30/2017, paras. 58 and 59. In cases of arrests made in
flagrante delicto, the opportunity to obtain a warrant will typically not be available.
6 A/HRC/30/37.
7 Ibid.
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91.
The Working Group notes with alarm that the Government itself acknowledges that
the arrest warrants were issued on 7 March 2018, five days after the four individuals were
arrested. This assertion is supported by the criminal investigation report of 5 March 2018,
which was provided by the source and shows that the warrants were issued after 2 March
2018. Furthermore, the source submitted records of the forensic examinations conducted on
the detainees, in which it is clearly established that the date of the event (referring to the
arrest) was 2 March 2018. It also attached reports circulated through social media and other
media, which showed that the arrests were made on a date earlier than that officially stated
by the Government. These inconsistencies cast doubt on the reliability of the dates given by
the Government and its account of the arrests. In contrast, the source’s account is consistent
and accurate and contains specific reference points. On this basis, the Working Group is of
the view that the date of arrest indicated by the source is more credible than that indicated by
the Government and that the arrest thus took place on 2 March 2018.
92.
After examining the source’s arguments and the Government’s claims that the arrest
warrants were issued on 7 March 2018 (five days after the date of arrest), the Working Group
is not convinced that the four individuals were arrested following the presentation of the
corresponding arrest warrants issued by a competent authority. Furthermore, in view of the
circumstances in which the arrests occurred, the Working Group is not convinced that the
individuals were informed of the reasons for their arrest. On this factual basis, the Working
Group considers that the above demonstrates a violation of article 9 (1) of the Covenant,
owing to the lack of proper procedures, and of article 9 (2), because at the time the individuals
were not informed of the reasons for their arrest.
93.
According to the source, for seven days, the families, relatives and lawyers had no
official news about the whereabouts of the four individuals and considered them to be
missing. They were not informed of the reasons for their detention or their location. Three of
the four individuals were transferred from different locations in the Bolivarian Republic of
Venezuela to the headquarters of the Directorate General of Military Counter-Intelligence in
Caracas. They were also taken from one detention centre to another without their families
being notified. This lack of information prevented their relatives from providing them with
basic assistance. The Working Group notes that, according to the source, the detainees were
not even allowed to make a telephone call to their families. The source also states that, on
9 March 2018, the individuals were brought before the Military Court of Due Process No. 3
in Caracas and forced to sign documents giving a date of arrest that was different to the actual
date. The Government claims that the detainees were arrested on 8 March 2018 and brought
before the Military Court of Due Process No. 3 the following day. The Government has not
responded to the allegations of enforced disappearance.
94.
The Working Group reiterates that there is no valid legal basis, under any
circumstances, for an individual’s detention by State agents followed by a failure to provide
information or a refusal to acknowledge such a situation or even give information concerning
his or her location or whereabouts, which constitutes a situation of enforced disappearance
within the meaning of article 2 of the International Convention for the Protection of All
Persons from Enforced Disappearance. In addition, the detention is inherently arbitrary, as it
places the person outside the protection of the law, in violation of article 16 of the Covenant
and article 6 of the Universal Declaration of Human Rights.8 Enforced disappearances are
prohibited by international law and constitute a particularly aggravated form of arbitrary
detention.9 Furthermore, the Committee on Enforced Disappearances and the Working Group
on Enforced or Involuntary Disappearances recall that enforced disappearance constitutes a
grave human rights violation regardless of its duration.10
95.
In the light of the information received, and given that the Government has not
provided a satisfactory response to the source’s allegations, the Working Group considers
that the four individuals were victims of enforced disappearance, in violation of article 9 (1)
of the Covenant. Furthermore, the Government’s failure to notify the detainees’ families of
their arrest and the location of their detention was also a violation of principle 16 (1) of the
8 Opinions No. 56/2023, para. 92; and No. 13/2020, para. 51.
9 Human Rights Committee, general comment No. 35 (2014), para. 17.
10 CED/C/11, para. 15.
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Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. The Working Group stresses that detainees must be allowed to communicate
with their family members and receive visits from them, and that any restrictions and
conditions on such contact must be reasonable. As the Human Rights Committee has
observed, giving prompt and regular access to family members is an essential and necessary
safeguard for the prevention of torture and for protection against arbitrary detention and
infringement of personal security.11
96.
The Working Group notes that holding people at secret locations and in circumstances
undisclosed to their family is a violation of their right to contest the legality of their detention
before a court or tribunal under article 9 (3) and (4) of the Covenant.12 Judicial oversight of
detention is a central safeguard of personal liberty and is critical to ensuring that detention
has a legitimate basis. As the Human Rights Committee has stated, 48 hours is ordinarily
sufficient to satisfy the requirement to bring a detainee “promptly” before a judge after the
arrest, and any delay longer must remain absolutely exceptional and be justified under the
circumstances.13
97.
After cross-checking the parties’ information, the Working Group concludes that the
four individuals were not brought promptly before a judicial authority, as their appearance
took place on 9 March 2018, seven days after their arrest. This constitutes a violation of
article 9 (3) of the Covenant and principle 32 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.
98.
The Government submits that the Military Court of Due Process No. 3 in Caracas
examined whether the requirements for pretrial detention had been met, taking into
consideration the punishable acts, the evidence and the flight risk or risk that the investigation
would be obstructed.
99.
The Working Group notes that the four individuals were detained on the grounds that
they had participated in an offence classified as terrorism, with a view to destabilizing the
Government. As a result, they were denied any possibility of an alternative to pretrial
detention, and the requests submitted at various points throughout the trial for the application
of alternatives to detention were also rejected.
100.
The Working Group recalls that mandatory pretrial detention has been identified as a
violation of the right to personal liberty and can potentially undermine other rights, such as
the presumption of innocence, personal integrity, judicial independence and equality before
the law.14 The Working Group also notes that, under article 9 (3) of the Covenant, pretrial
detention must be the exception and not the rule, and should be ordered for as short a time as
possible.15 It must be based on an individualized determination that it is reasonable and
necessary for such purposes as to prevent flight, interference with evidence or the recurrence
of crime.16 Courts must consider whether alternatives to pretrial detention, such as bail, would
render detention unnecessary.17 In determining whether the conditions governing pretrial
detention have been met, the Working Group examines whether the national courts have
taken into account the particular circumstances of the person concerned but does not check
whether there are risks that would make pretrial detention necessary.18
101.
The Working Group notes that the Government simply indicates that it has applied
domestic legal provisions, without explaining the circumstances specifically relevant to each
of the four individuals that justified their pretrial detention between their arrest on 2 March
2018 and the plea hearing on 16 December 2020. The Working Group therefore finds a
violation of article 9 (3) of the Covenant.
11 General comment No. 35 (2014), para. 58; and opinion No. 84/2020, para. 69.
12 Opinion No. 17/2024, para. 62.
13 General comment No. 35 (2014), paras. 32 and 33.
14 See A/HRC/57/44/Add.1.
15 Opinion No. 64/2024, para. 58; and A/HRC/19/57, paras. 48–58.
16 Human Rights Committee, general comment No. 35 (2014), para. 38.
17 Ibid.
18 Opinion No. 15/2022, para. 66.
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102.
The Working Group takes note of the source’s allegation that Mr. Marín Chaparro
was not shown an arrest warrant at the time of his arrest on new criminal charges related to
his alleged participation in a new plot to assassinate the President and other authorities. On
1 February 2024, Mr. Marín Chaparro was brought suddenly and clandestinely before a
special court at the headquarters of the Directorate General of Military Counter-Intelligence.
103.
While the Government claims that there was a new arrest warrant, it does not specify
whether this warrant was shown to Mr. Marín Chaparro or whether he was informed at the
time of the reasons for which he was being arrested again. In these circumstances, the
Working Group is of the view that Mr. Marín Chaparro’s rights under article 9 (2) of the
Covenant have been violated. Additionally, the Working Group notes that the competent
court decided to keep Mr. Marín Chaparro in detention. The Government did not provide
information on the specific relevant circumstances that justified his pretrial detention. The
Working Group therefore finds a violation of article 9 (3) of the Covenant.
104.
On the basis of the foregoing, the Working Group finds that the Government failed to
establish a legal basis for the arrest and detention of the four individuals. Their detention is
thus arbitrary under category I. Given the seriousness of the events recounted, a decision has
been made to refer the case to the Working Group on Enforced or Involuntary
Disappearances.
(b)
Category III
105.
The source states that, in the time between the detainees’ arrest on 2 March 2018 and
their arraignment hearing on 9 March 2018, they were subjected to torture and cruel, inhuman
and degrading treatment. Many such acts continued to be committed after the arraignment
hearing, when the detainees’ lives and personal integrity were put at risk by the serious prison
situation and the limited access to medicines and food.
106.
The Government rejects this allegation and asserts that the four individuals underwent
forensic medical examinations. However, the source claims that these examinations were not
properly carried out, since the doctors simply signed a document without conducting a
physical examination. The Government also notes that, during the public oral trial, which
was conducted more than two years after the arrest, the defendants claimed to have been
subjected to human rights violations, including torture. It is of the view that this circumstance
should be taken into account when assessing the credibility of the source’s claims.
107.
The Working Group notes that the source has submitted the reasoned order of 9 March
2018, in which the defence lawyers denounce the acts of torture committed at the
headquarters of the Directorate General of Military Counter-Intelligence in Boleíta, which
was a claim ignored by the court. The source adds that, during the hearing, the detainees
showed visible signs of torture, such as bruises and burns, which the judges should have
investigated.
108.
The Working Group has indicated that subjecting a person to torture or other forms of
ill-treatment or punishment prevents him or her from adequately preparing his or her defence,
which violates the principle of equality of the parties in the judicial process and constitutes a
violation of the right to a fair trial.19 In the Working Group’s view, the torture or ill-treatment
of detainees not only is a grave violation of human rights, but also a serious threat to the
fundamental principles of a fair trial, as it can compromise a person’s ability to defend
himself or herself, especially in the light of the right not to be compelled to testify against
oneself or to confess guilt.20
109.
Taking into account the detailed nature of the source’s communication and the lack of
specific information provided in the Government’s response, the Working Group finds that
the allegations presented to it reveal a prima facie breach of article 7 of the Covenant and
refers the case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment for further action.
19 Opinion No. 32/2019, para. 42.
20 Opinions No. 56/2019, para. 88; and No. 22/2019, para. 78.
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110.
The Working Group also finds that the information provided by the source
corroborates its claims that the fairness of the proceedings was tainted by ill-treatment and
torture, amounting to a violation of the right to a fair trial, as enshrined in article 11 (1) of the
Universal Declaration of Human Rights and article 14 (3) (g) of the Covenant. By failing to
suspend the proceedings when allegations of ill-treatment were made, the Military Court of
Due Process No. 3 did not act in a fair and impartial manner.21
111.
The Working Group notes that the four individuals had no access to a lawyer in the
time that they were subjected to enforced disappearance and held incommunicado, even
though, under article 14 (3) (b) of the Covenant, access to a lawyer must be granted from the
outset of the detention. The Working Group 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.22 In view of the foregoing, the Government has violated the detainees’ right
to have adequate time and facilities for the preparation of their defence and to communicate
with counsel of their own choosing.
112.
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 10 and 11 of the Universal Declaration of Human Rights
and article 14 of the Covenant. The aforementioned violations are of such gravity as to give
the four individuals’ detention an arbitrary character under category III and to compel the
Working Group to refer the case to the Special Rapporteur on the independence of judges
and lawyers.
3.
Disposition
113.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Igbert José Marín Chaparro, Víctor Eduardo Soto
Méndez, Juan Carlos Peña Palmieri and Deibis Esteban Mota Marrero, being in
contravention of articles 3, 6 and 8–11 of the Universal Declaration of Human Rights
and articles 9, 14 and 16 of the Covenant, is arbitrary and falls within categories I and
III.
114.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the steps necessary to remedy the situation of the four individuals 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 Covenant.
115.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release the four individuals immediately and accord
them an enforceable right to compensation and other reparations, in accordance with
international law.
116.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the four
individuals and to take appropriate measures against those responsible for the violation of
their rights.
117.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, the Special Rapporteur on the independence of judges and lawyers
and the Working Group on Enforced or Involuntary Disappearances.
118.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
21 See opinions No. 24/2020, No. 53/2018 and No. 46/2017.
22 A/HRC/30/37, annex, principle 9 and guideline 8; and Human Rights Committee, general comment
No. 35 (2014), para. 35.
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4.
Follow-up procedure
119.
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 the four individuals have been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the four
individuals;
(c)
Whether an investigation has been conducted into the violation of the rights of
the four individuals and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Bolivarian Republic of Venezuela with its
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
120.
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.
121.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
122.
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.23
[Adopted on 4 April 2025]
23 Human Rights Council resolution 51/8, paras. 6 and 9.