View Adopted: 2021.10.18
The author is a national of Venezuela. He was a constitutional lawyer who was called by Pedro Carmona Estanga (one of the opposition leaders following Chavez) to provide his legal opinion of the drafting of the “Carmona Decree” on the day of resignation of then-President Chavez. The “Decree” essentially stated the intention of Carmona to take executive power in an anti-constitutional way. The author sustained that he was not involved in the drafting and was simply asked to provide a legal opinion on an already drafted document. Further, that his reaction was one of “absolute rejection” of the Decree. When media outlets began to attribute the authorship of the document to the author, he promptly denied it. The Special Parliamentary Commission to Investigate the Events of April 2002 reported the author’s proven participation and co-drafting in the report without having previously summoned the author. Some years later, the author was found guilty of the crime of “conspiracy to violently change the Constitution”. Followingly, a prohibition of departure from Venezuela was issued on the author. This prohibition was later revoked for lack of motivation and instated again, after a change in the judiciary. Some months later, the author legally left the territory of Venezuela due to academic commitments and remained abroad since. Following the publishing of a book by the Venezuelan Attorney General stating that the author was involved in the drafting of the Decree, the author filed an appeal for annulment, claiming his right to defence, presumption of innocence and due process had been violated. The Venezuelan Prosecutor then called for the author’s preventative detention, which he requested to annul following inadmissibility. The issue was not resolved at the date of the communication. A few years later, all penal claims related to the drafting and signing of the Carmona Decree were extinguished. The author’s appeal of his previous charge, however, was denied.
The author claims that by accusing him of the above and through the mentioned justice process, the State party violated his rights to an effective remedy, liberty and security of the person, freedom of movement, equality before the law, presumption of innocence, prepare a defence, examine witnesses, privacy, freedom of thought and expression, and not to be discriminated against under articles 2(3); 9; 12; 14(1),(2),(3)(b) and (e); 17; 19; and 26 of the Covenant.
The communication is admissible as a decision by the Inter-American Court of Human Rights does not preclude the examination of the Committee. Allegations that domestic remedies had not been extinguished are unsupported as many available remedies had already been extinguished and prove the others’ lack of suitableness and effectiveness. However, as the author did not present claims domestically on article 17 violations and did not sufficiently substantiate his articles 9 ,12, 19, and 26 allegations; only his article 14(1),(2),(3)(b) and ( e), article 2(3) read in conjunction with article 14(1) were examined on the merits.
The Committee reminded the State party that the provisional appointment of judges should be exceptional and limited in time and that the judges must be independent and appear as such. In the absence of information from the State party proving the independence of provisional judges, the State party was found in violation of article 14(1). The Committee noted that the presumption of innocence extends to all authorities and found all statements of the author’s involvement in the drafting made by public officials in violation of article 14(2). The Committee did not believe the facts as submitted by the author allowed for the determination of potential State party violations of articles 14(3)(b) and ( e), as any “obstacles” to the auhor’s presentation of a defence were at most a disproportionate burden.
On the facts, the Committee noted a well-founded fear of the author to be subjected to arbitrary criminal proceedings and of the severe violation of his rights should he be placed in preventative detention. Hence, the Committee found a violation of his right to an effective remedy with respect to his right to due process, in particular, access to an independent tribunal, contained in article 2(3) read in conjunction with article 14(1).
The State party was in violation of the author’s article 14(1), (2) and 2(3) rights read in conjunction with article 14(1) of the Covenant.
The State party is under an obligation to provide the author with an effective remedy. The State party is obligated to:
The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.
Partial dissents by Arif Bulkan, Hèléne Tigroudja, Vasilka Sancin, Josè Santos Pais. At an investigation stage, the right to access to evidence is paramount, as is suggested in HRCttee General Comment 32 and IACtHR jurisprudence.
The burden of proof of the author is merely a description of lack of access to information. Hence, a breach of article 14(3)(b) should have been found. There is an obligation on the State party to disclose all material that the prosecution plans to offer in court, and when the author demonstrated that the State party substantially limited his access to such material (as he did in the case), a violation of article 14(3)(b) should have been found. Several Views of the Committee, unlike the position adopted in the present case, seem to require that the author provides evidence of the impact a particular public statement had on the outcome of their trial. Hence, a violation of article 14(2) should not have been found.
Deadline to provide follow-up information: 18.04.2022
By Laura Cestaro