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.25-08320 (E) 190825 190825
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. 36/2025 concerning Uaiparu Güerere López (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, on 3 December 2024,1 the Working Group
transmitted to the Government of the Bolivarian Republic of Venezuela a communication
concerning Uaiparu Güerere López. The Government submitted a late response on 6 March
2025. 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/2025/36
General Assembly
Distr.: General
20 June 2025
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Uaiparu Güerere López is a national of the Bolivarian Republic of Venezuela and
Spain. Mr. Güerere López was born on 5 December 1955 and is a businessman in the
Bolivarian Republic of Venezuela who worked for European vehicle companies for more
than 25 years.
(i)
Arrest
5.
Owing to his delicate state of health and age, Mr. Güerere López decided to sell his
assets with a view to retiring. With this in mind, and being a Spanish citizen, he was in Spain
receiving medical treatment.
6.
Mr. Güerere López sold an MD 520N helicopter that he owned, with registration
number YV1266, to a private individual with whom he concluded a sales agreement in late
2021. According to the agreement, the buyer would pay for the helicopter in full over a period
of one year, transferring the agreed amounts on a regular basis, and would enjoy the
possession and use of the helicopter during that period. Once the full payment had been made,
the bill of sale for the aircraft would be signed. This sale did not take place as the payment
was not made.
7.
In early 2023, Mr. Güerere López was very anxious and worried not only because he
had not received the payments, but also because he had learned that the helicopter was in the
possession of the Directorate General of Military Counter-Intelligence. In fact, the colour of
the helicopter had been changed from orange (the original colour) to matt black. It had kept
the same registration number (YV1266) and was being used by this agency and publicly
displayed on social media. In view of this situation, Mr. Güerere López continued to insist
that the buyer comply with the established agreement, writing to him every day and calling
him by telephone.
8.
On 22 May 2023, Mr. Güerere López travelled from Spain to the Bolivarian Republic
of Venezuela because the buyer had agreed to make a payment to him. On the afternoon of
31 May 2023, the buyer wrote to Mr. Güerere López, inviting him to come to his house in
the evening to discuss the payment for the helicopter, as Mr. Güerere López was insisting
that he was very worried that the Directorate General of Military Counter-Intelligence had
possession of the helicopter and that, if something happened, he was the owner. Mr. Güerere
López went to the buyer’s house at around 9 p.m. on the evening of 31 May 2023. Half an
hour later, at around 9.30 p.m., he left the buyer’s house and went to his room in a hotel in
the Ciudad Tamanaco shopping centre, where he was temporarily staying in Caracas. On the
same evening, at around 10 p.m., when Mr. Güerere López arrived at the car park in the
shopping centre, he was subjected to what the source considers to have been an attempted
abduction.
9.
When Mr. Güerere López parked in the underground car park of the hotel in the
shopping centre, he noticed some people acting suspiciously. One of them appeared alongside
him and asked him to lower his window. Mr. Güerere López realized that the person was
armed and that they were trying to block his way with another vehicle. Seeing that he was in
a dangerous situation, he managed to start his vehicle and manoeuvre out of the car park,
driving through the exit barrier. Believing that they wished to abduct him, he went to the
nearest police station, which was that of the Chacao Municipal Police. Upon arriving at the
police station, in a state of stress, Mr. Güerere López crashed into a railing. When the Chacao
police officers came out, Mr. Güerere López told them that he had been the victim of an
attempted kidnapping and that he feared that he had been followed.
10.
A few minutes later, some unmarked pick-up trucks arrived at Chacao Police Station
and a number of armed persons in plain clothes emerged from the vans to look for him. They
told him that they were from the Directorate General of Military Counter-Intelligence and
that they had a warrant for his arrest. Mr. Güerere López was never shown an arrest warrant
and all the people who came to look for him were wearing plain clothes. At that moment,
Mr. Güerere López realized that this was an extortion related to the sale of the helicopter.
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11.
Given that the Directorate General of Military Counter-Intelligence is a higher
authority, the Chacao Municipal Police decided to comply and hand over Mr. Güerere López
without an arrest warrant or any other relevant information late at night. The municipal police
officers questioned the procedure, as it was irregular, involving a late-night arrest without an
arrest warrant, without any indication of the grounds for the arrest and without any
identification being shown to link the agents or the vehicles in which they were travelling
with that agency.
12.
The source states that, following Mr. Güerere López’s arrest on 31 May 2023, he was
held on the premises of the Directorate General of Military Counter-Intelligence, without
anyone being permitted to see him for more than 31 days and without being permitted to see
his lawyer or being informed of the reasons for his detention.
13.
On the same night, the agents of the Directorate General of Military
Counter-Intelligence seized Mr. Güerere López’s vehicle and the belongings in it,
specifically, phones and the keys to his office and main residence (which was being prepared
for a subsequent sale), as well as those of the room in the shopping centre hotel. When the
agents of the Directorate General took Mr. Güerere López away, the anguish and stress to
which he was subjected resulted in his suffering a cardiac episode. Medical tests subsequently
showed that he had had a heart attack.
14.
Mr. Güerere López was taken to a sector of the Caracas Clinic where people in
detention are taken. A doctor examined Mr. Güerere López and said that his blood pressure
was very high. The doctor stated that Mr. Güerere López was not in good health and, for this
reason, prohibited him from being subjected to any type of questioning that night. However,
the officers of the Directorate General of Military Counter-Intelligence came in to question
him in a totally irregular manner, that is, without permitting his lawyer to be present, without
allowing him to make any calls and without informing him of the reasons for his detention,
all within hours of his having presented a clinical condition that showed that his life was at
risk.
15.
That night, according to the source, officials of the Directorate General of Military
Counter-Intelligence used Mr. Güerere López’s pick-up truck, keys and card to enter his
home, office and hotel room, from which they took belongings without a warrant, thereby
violating his right to property.
16.
On the evening of 2 June 2023, after he had been held at the Directorate General of
Military Counter-Intelligence for 48 hours, the first hearing was held. Mr. Güerere López
was brought before a court constituted at the headquarters of the Directorate General. He was
assigned a public defender, appointed by the same court. The source claims that Mr. Güerere
López was not permitted to be assisted by private defence counsel or to have contact with his
lawyer, which is unlawful, since the hearing should have taken place before a procedural
court to guarantee his right to be assisted by the lawyer of his choosing. At this hearing, he
was charged with the following offences: treason, disclosure of military secrets, illicit
trafficking of ammunition, resistance to authority, causing serious personal injury and
damage to property.
17.
According to the source, from that day the case file was placed under a judicial secrecy
order, which was lifted 30 days after the initial hearing. As a result, his public defender did
not have access to the proceedings and could not request the prosecutor attached to the Public
Prosecution Service to undertake any investigative measures to challenge the preliminarily
classified offences.
18.
Mr. Güerere López was disappeared for approximately 31 days. His family had no
news of him, his state of health, his whereabouts or his condition and did not know whether
he was alive. On 1 July 2023, that is, 31 days after his arrest, Mr. Güerere López’s family
members received a call from him. The source claims that Mr. Güerere López spoke in a
distraught manner, asking his family members about their health, because he had been told
that one of them was ill, and that this person had suffered a heart attack. Mr. Güerere López
was being subjected to psychological abuse. The source states that, until that moment,
Mr. Güerere López had been held totally incommunicado, without being able to see the light
of day, or receive visits from his lawyer or family, or make calls of any kind, which violates
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fundamental human rights. Furthermore, he is an older person with health problems, which
aggravates his situation and puts his life at serious risk.
19.
On 8 July 2023, Mr. Güerere López was allowed to receive a visit from a person close
to him for the first time.
20.
According to the source, Mr. Güerere López is being held on the premises of the
Directorate General of Military Counter-Intelligence on the sole grounds that he sold his
helicopter; this is therefore a financial matter. Owing to the conditions in which he is being
held and his delicate state of health, Mr. Güerere López’s condition could deteriorate quickly
and he therefore requires immediate medical attention.
(ii)
Trial proceedings
21.
The source states that, after 40 days, specifically, on the evening of 13 July 2023,
Mr. Güerere López was taken before a procedural court – the Fourth Special Court with
jurisdiction over cases involving terrorism-related offences – where he was charged with
another offence: criminal association. In these proceedings, he was also assisted by a public
defender appointed by the Government and was not granted the right to be assisted by his
private defence counsel – the lawyer of his choosing – which means that he did not have a
proper defence during this preliminary phase.
22.
Mr. Güerere López was brought before a court that is neither autonomous nor
independent. His right to the presumption of innocence was infringed from the day of his
arrest, since he was treated as guilty and not guaranteed the right to due process. On 14 July
2023, he was scheduled to be transferred to the court hearing the case so that his private
defence lawyers could be appointed. This did not occur as the Directorate General of Military
Counter-Intelligence did not transfer him to the court.
23.
According to the source, in accordance with the regulations governing criminal
procedure, the initial indictment was issued on 18 July 2023 by the prosecutor attached to the
Public Prosecution Service (office No. 74). The indictment could not be reviewed by the
public defence service. The defence did not take any steps to defend Mr. Güerere López,
since it did not have access to the prosecution file.
24.
On 21 July 2023, the lawyer of Mr. Güerere López’s choosing (who had not yet been
sworn in), acting to defend his client’s rights, filed an application for amparo against the
judge for having failed to comply with his obligations. The court hearing the case did not
take any action to address the failure of the Directorate General of Military
Counter-Intelligence to transfer the detained person to the court so that he could definitively
appoint a lawyer of his choosing. The application for amparo was denied.
25.
Almost three months after Mr. Güerere López’s arrest, following a very arduous
process, the private defence counsel was officially recognized by the court and replaced the
public defender. The private lawyer was sworn in on 2 August 2023. However, the situation
with the prosecution file continued, since the private counsel did not have access to it, which
prevented the exercise of the defence because it is not possible to conduct a defence if the
contents of the prosecution file are not known. The source alleges that the right to a defence
was violated during the indictment hearing held in the procedural phase, which was attended
by a public defender imposed on Mr. Güerere López.
26.
In a press conference given by the Attorney General on 22 January 2024, Mr. Güerere
López was said to be involved in a high-level conspiracy, involving assassination plans and
violent acts, together with people whom he does not know as he has not had any personal or
professional dealings with them or the companies that they represent. Mr. Güerere López has
been dragged into political matters, without having the right to defend himself, without
having any interest in politics and without having participated in, or been a member of, any
political party. In the source’s view, Mr. Güerere López was detained for financial reasons.
The agency that has possession of the helicopter is the one that is charging him with offences
and implicating him in a conspiracy. In addition to all the above, his home, office and vehicles
have been seized by the prosecutor’s office handling the case.
27.
On 19 February 2024, Mr. Güerere López was transferred from the detention facilities
of the Directorate General of Military Counter-Intelligence in Boleíta, Caracas, to El Rodeo I
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Prison in the city of Guatir, without being allowed to take his medication with him and
without having previously informed his relatives or his lawyer about the change in his place
of detention.
28.
On 17 April 2024, the preliminary hearing, which is the intermediate phase of the
criminal proceedings, was held at El Rodeo I Prison. According to the source, it was
conducted in an irregular manner in that it was designated as a remote hearing despite not
being one. Instead, the judge, using his mobile phone to make a video call on the WhatsApp
application, held a vitally important hearing involving a large number of lawyers and
defendants who had already been charged. The hearing was therefore not conducted in
accordance with the criteria governing trials and due process, as established by the
Constitution and international standards. Mr. Güerere López will be brought to trial with all
the offences classified in advance, without any proof or evidence whatsoever.
29.
With regard to domestic remedies, the source reports that, following the filing of an
application for amparo against the Fourth Special Court with jurisdiction over cases
involving terrorism-related offences, his defence lawyer was sworn in before the Court and
was thus able to exercise the following measures in defence of Mr. Güerere López: the
issuance of an application for the annulment of the arbitrary pretrial detention order, a brief
setting out objections to the prosecutor’s charges and the unlawful evidence put forward by
the prosecutor attached to the Public Prosecution Service in charge of the investigation, and
an appeal against the order for the opening of the oral, public trial.
30.
The source states that, prior to Mr. Güerere López’s arrest, he had suffered from acute
coronary syndrome and hypertension and has a history of heart attack, requiring constant
medication and medical care. He had undergone eye surgery made necessary by health
complications. He had also recently had surgery for hernias and a lipoma and was still
recovering. When he lived in Spain, he regularly underwent medical check-ups for his
chronic illnesses.
31.
The source claims that Mr. Güerere López’s sudden and unannounced imprisonment
had an adverse impact on his physical and mental health. On the night of his arrest, he
reportedly suffered a cardiac event that required emergency medical assistance. Furthermore,
during his prolonged detention, Mr. Güerere López was forced to share a cell with up to four
other people. The sanitary conditions were poor and he had to sleep on the floor for a long
period of time.
32.
During his deprivation of liberty at the headquarters in Boleíta, Mr. Güerere López
was exposed to an epidemic of scabies. His access to natural light was restricted.
33.
On 4 July 2023, a request for Mr. Güerere López to undergo a medical evaluation was
filed with the court. The request was accompanied by annexes setting out details of the
pathological conditions from which he currently suffers. To date, the court has not issued a
decision on the request, despite the urgency of the matter. Furthermore, on 19 February 2024,
Mr. Güerere López was transferred to El Rodeo I Prison without his medication or personal
belongings.
34.
Since his admission to prison, Mr. Güerere López’s health problems have drastically
deteriorated and the seriousness of his current state, owing to his heart condition, is alleged
to be such that there is a high risk of his suffering irreparable harm. His hypertension is
severely affected by his mood; he has episodes of anxiety and depression. He has a stomach
ailment caused by the hernia for which he was being treated with medication and he needs to
remain adequately hydrated in order to alleviate his stomach pains. He is awaiting a date for
a future operation. Mr Güerere López also suffers from respiratory problems caused by
congestion of the sinuses and oedema of the glottis, which obstruct the airways, resulting in
reduced oxygen supply to the brain. The inadequate sanitary conditions, including poor
ventilation, in the place where he is currently being held exacerbate the risks to his health.
Mr. Güerere López also suffers from sleep apnoea and physical exhaustion. In addition, he
has high blood pressure, which causes headaches and tinnitus (ringing in the ears). He also
has frequent spells of dizziness and episodes of disorientation. Mr. Güerere López has
received a limited amount of medical care and has not been permitted to be treated by his
private physicians.
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35.
Mr. Güerere López is almost 69 years of age and has serious health problems. His
state of health has deteriorated significantly during his detention and there is an imminent
risk to his life if the appropriate measures are not taken. Being deprived of his liberty in these
circumstances seriously affects his physical and mental health. The situation is exacerbated
by the unhealthy conditions, poor food and lack of drinking water, as well as by the fact that
he is not allowed to bring in books and visits have been suspended. In view of this grave
situation, the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, together with other special procedure
mandate holders, sent a communication to the Government of the Bolivarian Republic of
Venezuela.2
(iii)
Legal analysis
a.
Category I
36.
Mr. Güerere López’s detention was arbitrary since he was arrested without being
shown a warrant by persons who were unidentified and who failed to state why they were
taking him into custody. The acts attributed to him have not been proven; there is no evidence,
so the accusation is unlawful and has no legal basis.
37.
Mr. Güerere López’s arrest, which was conducted without a warrant and without his
being informed of the reasons for his arrest, is a direct violation of the right to liberty and
security enshrined in articles 3 and 9 of the Universal Declaration of Human Rights and
article 9 of the Covenant.
38.
Mr. Güerere López was disappeared for more than a month, specifically, for 38 days,
during which time his whereabouts and state of health were unknown and it was not known
whether he was alive. Enforced disappearance is one of the most serious violations of human
rights as it involves unlawful deprivation of liberty and the refusal to acknowledge such
deprivation. This practice violates not only Mr. Güerere López’s right to liberty but also his
right to security. This enforced disappearance placed Mr. Güerere López outside the
protection of the law and left his family members in a state of anguish and uncertainty.
39.
Mr. Güerere López was placed in pretrial detention, in violation of the corresponding
international standards (Covenant, art. 9) and the law of the Bolivarian Republic of
Venezuela, which establishes that, in order for pretrial detention to be ordered, it must be
proven that there is a flight risk or a risk that the proceedings will be obstructed by the person
charged (Code of Criminal Procedure, arts. 236 ff.). Accordingly, article 9 (3) of the
Covenant establishes that “it shall not be the general rule that persons awaiting trial shall be
detained in custody”, highlighting the exceptional nature of pretrial detention.
40.
In violation of national and international regulations, Mr. Güerere López was held in
pretrial detention without any grounds to justify the use of this measure and without his being
given the opportunity to defend himself against its use. Mr. Güerere López has already been
deprived of his liberty for 18 months without any review of the measure being conducted
and, consequently, without his having the opportunity to challenge its ongoing use.
41.
The source adds that the conditions of detention, which include total isolation, lack of
natural light and lack of contact with the outside world, as well as the psychological abuse
that Mr. Güerere López has suffered, constitute cruel and inhuman treatment. These
conditions not only violate the dignity of the person but also cause significant levels of
physical and mental suffering.
42.
According to the source, Mr. Güerere López’s initial conditions of detention at the
headquarters in Boleíta were extreme as he was held in confined spaces, in total isolation,
with no natural light or contact with the outside world for more than a month. For a time, he
was sleeping on the floor, sharing a 2 m2 cell with three other people and with limited access
to his medication. The detention conditions are unsanitary; there is a latrine in the same small
cell and the inmates are exposed to outbreaks of diseases such as scabies. He is currently
2 See communication VEN 5/2024, which can be consulted at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=29255.
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being held in the maximum security El Rodeo I Prison, where conditions continue to be
unhealthy and he receives no visits from family members and only occasional visits from his
private lawyer. These visits are always monitored and the conversations are recorded. Since
being imprisoned in El Rodeo I, over nine months ago, he has not been permitted to make
phone calls. These conditions of detention seriously affect his physical and mental health.
43.
The source states that total isolation deprives people of sensory stimuli and human
contact, which can cause serious psychological harm, including anxiety, depression and sleep
disorders. The lack of natural light and contact with the outside world affects physical health,
causing, inter alia, vitamin D deficiency and circadian rhythm disorders. Mr. Güerere López
was subjected to psychological abuse during his detention, including the refusal to allow him
any contact with his family members and the manipulation of information about their state
of health during his enforced disappearance, leading him to believe, for example, that one of
his relatives had had a heart attack.
44.
According to the source, article 5 of the Universal Declaration of Human Rights
establishes that no one may be subjected to torture (including psychological abuse) or to
cruel, inhuman or degrading treatment or punishment. Article 7 of the Covenant also
prohibits such treatment. Mr. Güerere López’s inhuman detention conditions constitute a
direct violation of these articles, as they violate the dignity and fundamental rights of the
person.
45.
The source adds that detention in inhuman conditions, the denial of visits and the lack
of adequate healthcare violate Mr. Güerere López’s right to be treated humanely and with
respect for his inherent dignity. Mr. Güerere López is continually denied family visits and
visits from his lawyer. The denial of visits seriously affects his emotional and psychological
well-being. Under article 10 of the Covenant, all persons deprived of their liberty must be
treated with humanity and with respect for the inherent dignity of the human person. The
denial of visits violates this right, as it prevents access to the human contact and support
necessary for the detained person’s well-being.
46.
The denial of appropriate medical care constitutes a violation of article 10 of the
Covenant. This article guarantees humane treatment and respect for the dignity of detained
persons, which includes the provision of appropriate and timely medical care. Lack of
medical treatment puts detained persons’ life and health at risk, especially when they have
pre-existing conditions that require ongoing medical care. Medical negligence in detention
can result in deteriorating health and serious complications.
b.
Category III
47.
According to the source, the denial of Mr. Güerere López’s right to be assisted by the
lawyer of his choosing, the appointment of a public defender without his consent, and the
conduct of the trial in irregular conditions, without permitting him to have access to a proper
defence, violate article 14 of the Covenant.
48.
The right to a fair trial includes access to a trusted lawyer and the opportunity to
conduct a proper defence. Mr. Güerere López was deprived of this fundamental right as he
was assisted by a public defender appointed during the preliminary phase of the trial without
being given access to a lawyer of his choosing or to the prosecution file. Several months
passed during which Mr. Güerere López was not assisted by his lawyer. After his lawyer was
sworn in, the few hearings that were scheduled were irregular and court appearances were
continually suspended and rescheduled. When the private lawyer is able to visit Mr. Güerere
López in his place of detention, he cannot speak with his client alone as security officers are
always present. The lawyer’s permitted visits are very irregular, with long periods of time
during which he cannot visit. The holding of hearings in irregular conditions, without the
necessary safeguards, violates the principle of due process and the presumption of innocence.
49.
The source states that Mr. Güerere López was denied the right to be assisted by the
lawyer of his choosing during the whole of the preliminary phase of the judicial proceedings.
Instead, Mr. Güerere López was assigned a public defender appointed by the court without
his consent. This violates article 14 (3) (b) and (d) of the Covenant, which guarantees all
persons the right to choose their own counsel and to have adequate time and facilities for the
preparation of their defence.
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50.
The assistance of a trusted lawyer is crucial to ensuring an effective defence. A lawyer
appointed by the court, without the consent of the defendant, may not act in the best interests
of his or her client. This undermines the quality of the defence and violates the defendant’s
right to adequate and effective representation.
51.
The source states that no access was granted to the prosecution file during the
preliminary phase of the trial. On 2 June 2023, at the headquarters of the Directorate General
of Military Counter-Intelligence in Boleíta, where Mr. Güerere López was deprived of his
liberty, the initial hearing was held. A public defender was assigned to him; he was not
permitted to appoint a lawyer of his choosing. At this hearing, he was charged with the
offences of treason, disclosure of military secrets, illicit trafficking of ammunition, resistance
to authority, causing serious personal injury and damage to property. From that same day,
the case file was placed under a judicial secrecy order, as a result of which the public defender
had no access to the proceedings and had no opportunity to request any investigative
measures necessary to challenge the preliminarily classified offences. On 7 July 2023, in the
evening, a new preliminary charge was brought against Mr. Güerere López: criminal
association, linking him with 11 persons whom he did not know.
52.
The denial of access to the case file makes it impossible to conduct a proper defence,
since the defendant cannot know the specific charges and evidence against him. This violates
article 14 (3) (b) of the Covenant, which establishes that everyone charged with a criminal
offence must have the right to adequate time and facilities for the preparation of his or her
defence. Without access to the case file, the defence counsel cannot prepare an effective
defence strategy and is unable to refute the charges. This lack of transparency and
information undermines the principle of equality before the law and the right to a fair trial.
53.
The hearings were conducted in irregular conditions, including a preliminary hearing
held via a video call on the WhatsApp application. On 17 April 2024, from El Rodeo I Prison,
Mr. Güerere López had a preliminary hearing, conducted by video call, in which he was
brought to trial with all the offences classified in advance, without any proof or evidence
whatsoever. In addition, he was denied access to a private defence lawyer.
54.
This approach does not guarantee the proper conditions for a fair trial and violates
article 14 (1) of the Covenant, which states that everyone is entitled to a fair and public
hearing by a competent, independent and impartial tribunal. Holding hearings in
inappropriate conditions undermines the defendant’s right to a fair and public hearing. The
lack of legal formalities and safeguards in the conduct of hearings creates doubts about the
impartiality and competence of the court, undermining confidence in the judicial system.
55.
The source argues that the rights to due process and the presumption of innocence
were violated. It claims that Mr. Güerere López was treated as guilty from the moment of his
arrest, without due process being observed. His lack of access to a lawyer of his choosing,
the imposition of a public defender and the holding of hearings in irregular conditions
together constitute a violation of article 14 (3) of the Covenant.
56.
The source recalls that due process is a fundamental pillar of justice. The presumption
of innocence and the right to a proper defence are essential to ensure that trials are fair and
impartial. In Mr. Güerere López’s case, these principles have been seriously undermined and
his fundamental human rights have been violated.
57.
Mr. Güerere López’s right to be tried by an impartial and independent tribunal has
been violated. The court hearing the case – the Fourth Special Court with jurisdiction over
cases involving terrorism-related offences – cannot guarantee its impartiality or
independence. Mr. Güerere López’s deprivation of liberty is contrary to the spirit of domestic
law and violates the principle of the presumption of innocence enshrined in article 11 (1) of
the Universal Declaration of Human Rights. In being brought before this court, Mr. Güerere
López does not have access to an independent and impartial tribunal since the competence,
independence and impartiality of the courts is in doubt.
58.
The source claims that searching Mr. Güerere López’s home, office and vehicles,
without any legal basis, constitutes arbitrary interference in his private life, violating his
rights to the privacy and protection of the home guaranteed by the Universal Declaration of
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9
Human Rights and the Covenant. These actions, in addition to his detention and the
conditions in which he is detained, seriously violate his human rights.
(b)
Response from the Government
59.
The Working Group, in accordance with its methods of work, transmitted the source’s
allegations to the Government on 3 December 2024, requesting it to provide detailed
information on the situation of Mr. Güerere López by 3 February 2025 and to clarify the legal
and factual grounds justifying his detention, as well as the compatibility of these grounds
with the international human rights obligations of the Bolivarian Republic of Venezuela. On
30 January 2025, the Government requested an extension of the deadline and was given until
3 March 2025 to reply.
60.
The Government sent its response on 6 March 2025, after the previously established
deadline. The Working Group therefore cannot treat the Government’s reply as if it had been
submitted before the deadline.
2.
Discussion
61.
The Working Group regrets that it did not receive a timely response from the
Government to this communication. In the absence of a timely response from the
Government, and on the basis of all the information available to it, the Working Group has
decided to render the present opinion in conformity with paragraph 16 of its methods of work.
62.
In determining whether Mr. Güerere López’s deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
human rights law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations. Mere assertions that lawful
procedures have been followed are not sufficient to rebut the source’s allegations.3
(a)
Category I
63.
The source claims that Mr. Güerere López’s arrest was arbitrary under category I, as
it was carried out on 31 May 2023 without an arrest warrant, without his being informed of
the reasons for his arrest and by unidentified persons. The Government, in its late response,
stated that a commission of the Directorate General of Military Counter-Intelligence had been
formed on that day to locate and identify Mr. Güerere López so that he could testify about
the acts under investigation. According to the Government, when he was located at his
residence, he reportedly acted in an evasive manner, whereupon he was pursued and arrested
in flagrante delicto. It adds that he was informed of the reasons for his arrest and his rights.
64.
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.4 This is
typically done through an arrest warrant or a court order,5 or an equivalent document.6 The
reasons for the arrest must be provided immediately upon arrest and must include not only
the general legal basis of the arrest, but also enough factual specifics to indicate the substance
of the complaint, such as the wrongful act and the identity of an alleged victim.7
65.
Detained persons have the right to be promptly informed of the charges against them.
This is inherent in article 9 of the Universal Declaration of Human Rights and principles 2
and 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment. These provisions also require that the procedures for carrying
out legally authorized deprivation of liberty should be established by law and that States
parties should ensure compliance with them, including by specifying when an arrest warrant
3 A/HRC/19/57, para. 68.
4 In cases of arrests made in flagrante delicto, the opportunity to obtain a warrant will typically not be
available.
5 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
6 Opinions No. 30/2017, paras. 58 and 59; and No. 18/2023, para. 93.
7 Opinion No. 85/2021, para. 69.
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is required.8 If these procedures are not respected, a detention is arbitrary and seriously
undermines the ability to conduct a proper legal defence.
66.
On the basis of the information received, the Working Group considers that the
Government has not provided a convincing explanation of how the circumstances
surrounding Mr. Güerere López’s arrest correspond to the legal concept of in flagrante
delicto. In its jurisprudence, the Working Group has consistently stated that an offence is
considered to be flagrant if the accused is either apprehended during the commission of an
offence or immediately thereafter, or is arrested in hot pursuit shortly after an offence has
been committed.9 In the present case, the Working Group concludes that there were no
circumstances that might reasonably justify an arrest made in flagrante delicto that would
exempt the authorities from the requirement to have an arrest warrant. Furthermore, on the
basis of the information provided by both parties, it is clear to the Working Group that no
arrest warrant was produced at the time of the arrest. Therefore, the Working Group considers
that this constitutes a clear violation of article 9 (1) of the Covenant.
67.
The Working Group also considers that the Government has not convincingly refuted
the source’s claim that Mr. Güerere López was not informed of the reasons for his arrest. The
Government has limited itself to stating that this requirement was observed, but does not
provide further details of how the notification was issued or whether it included sufficient
factual specifics, such as the wrongful act and the identity of the alleged victim.
Consequently, Mr. Güerere López was not notified promptly of the reasons for his arrest, in
violation of article 9 (2) of the Covenant.
68.
The source claims that Mr. Güerere López was disappeared from 31 May 2023, in the
hands of the Directorate General of Military Counter-Intelligence, without being able to
receive visits for more than 31 days and without being allowed to see his lawyer.
Furthermore, the reasons for his detention were not communicated and information about his
circumstances or his exact whereabouts was not provided. Not until 31 days later did his
family receive a call from him. The Government did not refute these claims and limited itself
to stating, in its late response, that Mr. Güerere López was not subjected to enforced
disappearance because, despite having had the opportunity to file the corresponding
complaints, neither he nor his private defence counsel had done so in any procedural act.
69.
The Working Group recalls that a deprivation of liberty entailing a wilful refusal to
disclose the fate or whereabouts of the persons concerned or to acknowledge their detention
has no valid legal basis under any circumstances. In addition, it 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.10 The Government’s failure to
notify the detainee’s family of his arrest and the location of his detention was also a violation
of principle 16 (1) of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. 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.11
70.
Being of the view that the Government failed to refute the source’s allegations, the
Working Group concludes that Mr. Güerere López was subjected to enforced disappearance,
in breach of article 9 (1) of the Covenant. Enforced disappearances are prohibited by
international law and constitute a particularly aggravated form of arbitrary detention.12
71.
The Working Group has learned from the source that Mr. Güerere López was placed
in pretrial detention, in violation of the corresponding international standards (Covenant,
8 Human Rights Committee, general comment No. 35 (2014), para. 23.
9 Opinions No. 61/2011, paras. 48 and 49; No. 67/2011, para. 30; No. 46/2012, para. 30; No. 53/2014,
para. 42; No. 36/2017, para. 85; No. 9/2018, para. 38; and No. 78/2018, para. 70. See also
E/CN.4/2003/8/Add.3, paras. 39 and 72 (a).
10 Opinions No. 13/2020, para. 51; and No. 56/2023, para. 92.
11 CED/C/11, para. 15.
12 See opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 38/2021 and
No. 53/2022. See also Human Rights Committee, general comment No. 35 (2014), para. 17.
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11
art. 9) and the law of the Bolivarian Republic of Venezuela, which establishes that, in order
for pretrial detention to be ordered, it must be proven that there is a flight risk or a risk that
the proceedings will be obstructed by the person charged (Code of Criminal Procedure,
arts. 236 ff.). The Government, in its late response, states that pretrial detention was ordered
following a detailed assessment of whether the procedural requirements had been met, in
particular, to ensure the appearance of the accused for trial or at any stage of the judicial
proceedings.
72.
According to 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.13 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.14 Courts must consider
whether alternatives to pretrial detention, such as bail, would render detention unnecessary.15
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.16
73.
The Working Group notes that the Government limits itself to citing domestic legal
provisions, without explaining what specific and concrete circumstances relating to
Mr. Güerere López’s case justified the use of pretrial detention, especially considering his
advanced age and delicate state of health. The Working Group therefore finds a violation of
article 9 (3) of the Covenant.
74.
On the basis of the foregoing, the Working Group finds that the detention of
Mr. Güerere López is arbitrary under category I.
(b)
Category III
75.
The source states that Mr. Güerere López was unable to communicate with the lawyers
of his choosing from the moment of his arrest and that he was questioned without the presence
of a lawyer and was not permitted to make any phone calls. Almost three months after his
arrest, after an extremely difficult process, the private defence counsel was officially
recognized and replaced the public defender who, according to the source, had been imposed
on him. Once authorized, the private lawyer was able to visit Mr. Güerere López at his place
of detention, although he was never permitted to talk to him in private, as security officials
were present at all times. In addition, the legal visits were granted in an irregular manner,
with long periods during which the lawyer was unable to see him. In its late response, the
Government stated that Mr. Güerere López had benefited from the legal representation of his
choosing throughout the process and that he was represented by a public defender only when
he stated that he did not have a private defence counsel to assist him.
76.
The Working Group notes that the right to a defence is key to ensuring a fair trial that
is conducted according to the principle of equality of the parties with a view to avoiding
biases that may affect the decision. A fair trial conducted according to the principle of legality
must ensure that the parties have the legal support of an effective and independent legal
defence lawyer who has the time to study the case and challenge decisions, as well as the
opportunity to appeal if necessary. The Working Group recalls that all persons deprived of
their liberty have the right to legal assistance by counsel of their choice at any time during
their detention, in particular immediately after their apprehension, and that such access must
be provided without delay.17
13 Opinion No. 64/2020, para. 58. See also A/HRC/19/57, paras. 48–58.
14 Human Rights Committee, general comment No. 35 (2014), para. 38.
15 Ibid.
16 Opinion No. 15/2022, para. 66.
17 A/HRC/45/16, paras. 51–53. See also A/HRC/30/37, annex (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), para 67–71 (guideline 8). See also opinion No. 38/2021, paras. 90
and 91.
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77.
The Working Group, considering its previous finding that Mr. Güerere López was
subjected to enforced disappearance after being arrested, and that he was denied the right to
be assisted by a lawyer of his choosing as soon as he was arrested, concludes, after analysing
the information it has received, that he did not have such assistance throughout the
proceedings instituted against him. The source, both in its initial submission and in its
additional comments, reports on the various requests submitted by Mr. Güerere López’s
lawyer to exercise his legal representation in the proceedings. In the absence of a satisfactory
explanation by the Government as to why the right to a lawyer of Mr. Güerere López’s
choosing was not guaranteed from the beginning of his detention and throughout the
preliminary phase, the Working Group considers that the authorities violated Mr. Güerere
López’s right to an adequate defence under article 14 (3) (b) of the Covenant and rule 61 of
the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela
Rules).
78.
The Working Group wishes to point out that, given defendants’ right to communicate
with counsel, lawyers should be able to meet their clients in private and to communicate with
the accused in conditions that fully respect confidentiality.18 As this right was not respected
in the present case, in that Mr. Güerere López was not permitted to have private conversations
with his lawyer, the Working Group finds a violation of article 14 (3) (b) of the Covenant.
79.
The source has also stated that no access was granted to the prosecution file during
the preliminary phase of the judicial proceedings, which prevented an adequate defence, as
the defendant was unable to learn of the specific charges and evidence against him. The
Working Group recalls that, in principle, access to the case file must be provided from the
outset.19 In the absence of a rebuttal from the Government, the Working Group concludes
that Mr. Güerere López’s rights under article 14 (1) and (3) (b) of the Covenant were also
violated.
80.
The source has informed the Working Group that the conditions of detention,
including Mr. Güerere López’s total isolation, the lack of natural light and contact with the
outside world, and the psychological abuse that he suffered, constitute cruel and inhuman
treatment. These conditions not only violate the dignity of the person but also cause
significant levels of physical and mental suffering. It adds that Mr. Güerere López has
received a limited amount of medical care and has not been permitted to be treated by his
private physicians.
81.
The Working Group notes that total isolation deprives people of sensory stimuli and
human contact, which can cause serious psychological harm, including anxiety, depression
and sleep disorders. Lack of natural light and contact with the outside world affects physical
health, causing, inter alia, vitamin D deficiency and circadian rhythm disorders. Mr. Güerere
López was subjected to psychological abuse during his detention, including the refusal to
allow him any contact with his family and the manipulation of information about their state
of health during his enforced disappearance, leading him to believe, for example, that one of
his family members had had a heart attack. The source states that Mr. Güerere López is almost
69 years of age and has serious health problems. His state of health has deteriorated
significantly during his detention and there is an imminent risk to his life if the appropriate
measures are not taken. Being deprived of his liberty in these circumstances seriously affects
his physical and mental health.
82.
The Working Group wishes to reiterate that the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health
has noted, in a report prepared pursuant to Human Rights Council resolution 33/9, that in
contexts of confinement and deprivation of liberty, violations of the right to health interfere
with fair trial guarantees, the prohibition of arbitrary detention and of torture and other forms
of cruel, inhuman or degrading treatment, and the enjoyment of the right to life. Violations
18 Human Rights Committee, general comment No. 32 (2007), para. 34. See also Human Rights
Committee, Khomidova v. Tajikistan (CCPR/C/81/D/1117/2002), para. 6.4.
19 See opinions No. 78/2019, No. 29/2020, No. 67/2020 and No. 77/2020.
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GE.25-08320
13
of the right to health emerge as both causes and consequences of confinement and deprivation
of liberty.20
83.
The Working Group notes that the denial of appropriate medical care constitutes a
violation of article 10 of the Covenant. This article guarantees humane treatment and respect
for the detained person’s dignity, which includes the provision of appropriate and timely
medical care. Lack of medical treatment puts detained persons’ life and health at risk,
especially when they have pre-existing conditions that require ongoing medical care. Medical
negligence during detention can result in deteriorating health and serious complications.
84.
Moreover, the Working Group reminds the Government that, under article 10 of the
Covenant, all persons deprived of their liberty must be treated with humanity and with respect
for the inherent dignity of the human person and that endangering the health of detainees
constitutes a violation of rules 24, 25, 27 and 30 of the Nelson Mandela Rules. The Working
Group notes that the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, together with other special
procedure mandate holders, sent a communication to the Government of the Bolivarian
Republic of Venezuela.21
85.
Noting all the above, the Working Group concludes that the violations of Mr. Güerere
López’s right to a fair trial are of such gravity as to give his detention an arbitrary character,
falling under category III.
3.
Disposition
86.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Uaiparu Güerere López, being in contravention
of articles 3, 6, 9, 10 and 11 of the Universal Declaration of Human Rights and
articles 9, 10, 14 and 16 of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I and III.
87.
The Working Group requests the Government of the Bolivarian Republic of
Venezuela to take the necessary steps to remedy the situation of Mr. Güerere López without
delay and to bring it into conformity with the relevant international standards, including those
set forth in the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights.
88.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Güerere López immediately and to
grant him the effective right to obtain compensation and other types of reparation, in
accordance with international law.
89.
The Working Group urges the Government to carry out a thorough and independent
investigation into the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Güerere López and to take appropriate action against those responsible for the violation of
his rights.
90.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
91.
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. Güerere López has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been granted to Mr. Güerere
López;
20 A/HRC/38/36, para. 18.
21 See communication VEN 5/2024.
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(c)
Whether an investigation has been conducted into the violation of Mr. Güerere
López’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Bolivarian Republic of Venezuela with its
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
92.
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.
93.
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.
94.
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.22
[Adopted on 10 April 2025]
22 Human Rights Council resolution 51/8, paras. 6 and 9.