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REPORT
Nº 50/00
I.
SUMMARY
1. The petition alleges the violation by the Venezuelan
Government of the rights protected by the Convention of Mr. Reinaldo Figueredo
Planchart in the investigation and prosecution of charges against him, for the
crimes of misappropriation and embezzlement of funds. The violations
charged are of Article 5 (1), (2) and (4)
(Right to Humane Treatment); Article 8 (1), (2) (b), (d), (f), (h) and (5) (Fair
Trial); and Article 25 (1) (Judicial Protection) in relation to Article 1 (1)
(Obligation to Respect Rights) of the Convention. The Commission was asked to rule on suspension of
execution of the warrant issued for the arrest of Mr. Figueredo, and, in the
event of his conviction, on suspension of his extradition and incarceration
until the Commission decided on the merits of the case. The Government moved for
dismissal on the grounds that domestic remedies had not yet been exhausted. The
Commission disallowed that motion and declared the case admissible on September
28, 1998, during its 100th regular session.
In Report on Admissibility Nº 81/98 the Commission placed itself at the
disposal of the parties with a view to reaching a friendly settlement of the
matter. The petitioner agreed to
that procedure but the Government failed to send any observations to the report
or to reply to the Commission’s offer. By
note of March 8, 1999, the Commission reiterated its offer to the Government of
Venezuela giving it a period of 30 days to reply, further indicating to it that
“if no such reply is received by the deadline set the Commission will continue
to process this case." In
continuing its processing of the case and following an examination of the
factual and legal grounds put forward by the parties, the Commission finds that
the Venezuelan Government responsible for violation of the rights enshrined in
the American Convention that were set out by the petitioner in his complaint of
May 23, 1994, with the exception of the right to humane treatment where the
Government was not found responsible. Consequently,
the Commission recommends that the Venezuelan Government vacate the prosecution
of Reinaldo Figueredo Planchart, rescind the warrant issued for his arrest, and
grant him a new trial with full guarantees of due process.
Furthermore, the Government must provide adequate and timely compensation
to Reinaldo Figueredo Planchart, including just satisfaction for the human
rights violations established herein.
2. On May 23, 1994, the Inter-American Commission on Human
Rights (hereinafter "the Commission") received a petition alleging
violation by the Republic of Venezuela (hereinafter "the Government,"
"the Venezuelan Government" or "Venezuela") of the rights of
Mr. Reinaldo Figueredo Planchart protected in the American Convention on Human
Rights (hereinafter "the Convention").
3. The Government’s reply was received on August 12,
1994. On October 4, 1994 a
questionnaire was sent to the parties with a request that it be filled out.
The replies from the petitioner and the Government were received on
December 16, 1994, and January 2, 1995, respectively.
Additional information arrived from the petitioner on August 26, 1995.
The Commission received the observations of the Government on November 22, 1995. On January 18, 1996, the petitioner submitted to the
Commission a contingent request for Precautionary Measures.
On August 1, 1996, a reply to the Government’s remarks and a
complementary complaint were received from the petitioner.
The Commission received additional information from the Government on
February 6, 1997, and from petitioner on February 20, 1997, and April 20, 1998.
4. On September 28, 1998, the
Commission adopted Report on Admissibility Nº 81/98, which was forwarded to the
Government on October 15, 1998. Through
that report, the Commission placed itself at the disposal of the parties with a view
to reaching a friendly settlement of the matter on the basis of respect for the
human rights recognized in this Convention pursuant to
Article 48 (1) (f) of the Convention and 45 of its Regulations. Accordingly the
Commission granted the parties a period of two months in which to reply to its
offer. By note of December 14,
1998, the petitioner Douglass Cassel thanked the Commission and accepted its
proposals. That note was transmitted to the Government on December 22, 1998.
The Commission repeated its offer to the Government in a note dated March
8, 1999. The Government did not reply to the Commission’s offer of
friendly settlement.
5. During its 104th Regular session,
the Commission examined the instant case and adopted Report Nº 85/99 under
Article 50 of the American Convention on Human Rights.
This report was conveyed to the Government on October 13, 1999. The Government made no observations to the report and failed
to comply with the recommendations of the Inter-American Commission on Human
Rights.
6. The Commission in the course of
its 106th regular meeting again examined the present case and
approved Report Nº 20/00 pursuant to Article 51 of the American Convention on
Human Rights. The report was sent
to the State and the petitioners on March 7, 2000 with the admonition of
confidentiality until the Commission might approve its publication.
The Commission gave Venezuela one month to resolve this situation.
The term expired and the State neither implemented the Commission´s
recommendations nor responded in any way to the report.
Therefore, on April 13, 2000 the Commission agreed to publish this report
and include it in its Annual Report to the General Assembly of the Organization
of American States A.
The petitioners 7.
The complaint asserts that the Venezuelan Government
has violated rights of Reinaldo Figueredo Planchart that are protected by the
Convention. The Supreme Court of Justice ordered Mr. Figueredo arrested for
trial on a charge of misappropriation of funds and embezzlement while he was
Minister of the Presidential Secretariat and Minister of Foreign Affairs. 8.
It is alleged that in the course of that proceeding his
right of defense was violated by the Office of the Comptroller General of the
Republic of Venezuela. That Office conducted a "documentary
investigation" into the use made of budgetary funds assigned to
expenditures for Government security in 1989 and concluded that there was
evidence of commission of the crimes of misappropriation and embezzlement. The
report named Mr. Figueredo as one of the presumed culprits. That document was
the basis of a summary proceeding before a tribunal.
9. It is complained that the Office of the Comptroller
General did not advise Mr. Figueredo that he was being investigated, did not
inform him of the evidence being used against him, gave him no opportunity to
defend himself or to present evidence, and refused him a copy of the report
incriminating him though it had sent it to the Attorney General and to a court,
and did not reply to his request for the opening of an "administrative
inquiry" into the charge against him in accordance with due process of law.
10. The complaint states that the
Attorney General violated Mr. Figueredo’s right of defense by summoning him
informally, arraigning him on criminal charges before the Supreme Court of
Justice on the primary basis of the Comptroller General’s report without
letting him know the evidence on which it was based or giving him an opportunity
to contradict it, and denying him access to the text of the charge and of the
Comptroller General’s report on which the action was based.
11. It is complained that the Supreme
Court of Venezuela violated Mr. Figueredo’s right of defense, of appeal, and
not to be subjected to cruel and inhuman treatment.
12. On May
20, 1993, the
Supreme Court declared that there were sufficient grounds to try then Deputy
Figueredo based on the constitutional provisions for the criminal indictment of
certain public officials (the President of the Republic, Senators and Deputies).
The petitioner states that, on the strength of this ruling of the Court, Mr.
Figueredo was not permitted to know the evidence against him or to defend
himself; that in its decision, based on the report of the Comptroller General's
Office, the Court had ruled that there was evidence of commission of the crimes
of misappropriation and embezzlement--but did not specify what that evidence was
or the crimes for which he was to be tried. The result of the Court's decision
was that Mr. Figueredo was brought to trial, stripped of his parliamentary
immunity, and removed from his position as a Deputy to the Nation's Congress.
13. The Supreme Court decided to try
Mr. Figueredo (along with President Carlos Andrés Pérez and Senator Alejandro
Izaguirre) directly, in a proceeding which rules out appeals. Once the
proceeding was under way, the Court denied Mr. Figueredo access to the evidence
against him, as well as the right to present evidence and enter pleas, and to
take any action in his own defense. That summary phase ended with the issuance
of an order for his arrest without bail.
14. The Court took his testimony in a
secret hearing: the only persons present were the representatives of the
prosecuting attorney and officers of the Court itself. His lawyer was not
allowed to be present. The Court did not permit the defendants to appoint an
attorney or defender, or do anything to state their case to the Court, to submit
evidence or to present any request until the warrants for their arrest had been
issued. The petitioner notes the Court's pronouncement that until that happened,
they could not be regarded as on trial, even though they had each been indicted,
individually and by name, by order of the Court itself.
15. A year after the opening of the
trial the Court ruled that the commission of crimes of misappropriation and
embezzlement had been proven and that there was well-founded evidence of the
guilt of the accused. It ordered that he be held in custody until and during the
actual trial. The petitioner claimed that "there is no charge or evidence
to cast the slightest doubt on my personal honesty and integrity."
16. In addition, the petitioner alleges
that under the law and the jurisprudence of the Court release on bail can never
be granted to any person on trial for crimes under the Law on Protection of
Public Assets, which meant that he would remain in confinement for the duration
of the trial. He also described the dangerous conditions prevailing in
Venezuelan prisons.
17. The petitioner charges that the
Supreme Court violated his right of defense in not permitting him to know what
he was accused of or on what evidence, in not permitting him to appoint a
defender or attorney, or to act, present evidence or pleadings or make petitions
at any stage of the proceeding that prompted the warrant for his arrest, and in
subjecting him to interrogation without the presence of defending counsel or of
any impartial third party.
18. Against the Government's assertion
that the charge and its supporting documents had been delivered to him between
the preliminary proceedings and the investigation, the petitioner maintains that
"at that time the documents were delivered to former President Pérez, but
not to Mr. Figueredo, who had no access to those documents until a year later,
after the investigation."
19. The petitioner complains of
violation of his right to appeal the judgments handed down against him and
"the order that he be subjected to inhumane punishment without even having
been sentenced by ordering his arrest without bail at grave danger to his
physical and moral integrity."
20. In his complementary accusation the
petitioner alleges that the Court's independence "may reasonably be
supposed to be questionable."
21. It is alleged that the Political
and Administrative Chamber of Venezuela's Supreme Court violated the
petitioner’s right to due process.
22. Having found it impossible to
defend himself against the imputations against him in the report of the Office
of the Comptroller General, on November 10, 1993, the petitioner, acting through
his agent, filed a motion for nullification of that report with the Political
and Administrative Chamber of the Supreme Court. At this writing the Chamber has
not ruled on the question even though the procedural deadline for doing so has
run out and despite the effect that such a ruling would have on the trial
itself. On that occasion he filed an appeal for protection ("amparo")
of the constitutional rights violated by that report. Nine months after it was
filed, the appeal for "amparo" was disallowed.
23. The petitioner complains that in
the court proceedings the judges of that Chamber participated in the decision to
order his arrest and failed to pass on the appeals filed. The petitioner also
charges unwarranted delay and denial of justice.
24. In consequence, the petitioner has
asked the Commission to investigate the violation by the Government of Venezuela
of his rights under Article 5 (1, 2 and 4) and 8[1, 2 (b), 2 (d), 2 (f), 2 (h)
and 5], 24 and 25 of the Convention. He calls on the Commission "to order, as an urgent
precautionary measure, suspension of execution of the warrant for my arrest in
order to avert irreparable injury to my physical and moral integrity and to
allow me to come forward at liberty, subject to due assurances and guarantees,
to exercise my right of defense in the proceedings against me, and to advise the
Government of Venezuela accordingly."
25. At the same time, he has asked the
Commission to appeal urgently to the Inter-American Court of Human Rights order
as a precautionary measure "suspension of execution of the warrant for his
(my) arrest in order to avert irreparable injury to his (my) physical and moral
integrity and to allow him (me) to come forward at liberty, subject to due
assurances and guarantees, to exercise his (my) right of defense in the
proceedings against me, and notify the Government of Venezuela
accordingly."
26. Subsequent to his original
complaint, the petitioner filed with the Commission a Contingent Request for
Precautionary Measures in which he requested that, "in the event that the
Supreme Court of Venezuela finds him guilty in the criminal proceeding to which
the present petition relates, to pass a resolution recommending ad
interim precautionary measures."
27. In that eventuality the
precautionary measure requested is as follows:
A
resolution in which the Commission recommends that, if Mr. Figueredo is found
guilty by the Supreme Court of Venezuela in the criminal proceeding to which
this petition relates, his sentence of extradition or imprisonment not be
carried out until the Commission has resolved the serious issues of violations
of due process in this case now pending before the Commission.
28. In his complementary complaint the
petitioner also asks the Commission "to recommend that Mr. Figueredo be
compensated for the damages caused by violation of his rights, including--but
not limited to--loss of employment since the opening of the investigation; to
recommend that Venezuela reform its laws and procedures to guard against a
recurrence of such violations, including--but not limited to--assurance that the
right of defense applies as much in the preliminary proceedings as in the
trial...”
B.
THE GOVERNMENT
29. The Government alleges that the
complaint is inadmissible because the remedies under domestic jurisdiction have
not yet been exhausted.
30. The Government states that
petitioner was not informed of the charge against him because "it cannot be
concluded that the accused must in every case be provided with a copy of the
charge or of its appended documentation."
31. The prosecutor asserts that
delivery of a complete copy of the complaint is compulsory only in proceedings
to determine responsibility for crimes not punishable by death, personal
restraint or penal servitude. "It must be remembered that in this case the
accused was charged with the crimes of misappropriation and embezzlement, for
which the Organic Law on Protection of Public Assets imposes personal restraint
or imprisonment."
32. The Government's position is that
"the action instituted against Citizen Reynaldo Figueredo Planchart is
proceeding in strict compliance with the legal order enshrined in the
Constitution and the laws of the Republic."
33. The guarantees set forth in Article
8 of the Convention are not applicable to the proceeding known as "a
preliminary hearing on merits," which is neither a trial nor "a
proceeding to determine responsibility of any kind," but rather to produce
a ruling on whether a trial should follow. "To give those judicial
guarantees effect in the preliminary hearing would vitiate it and turn it into
something else."
34. The proceeding followed in the
present case was not an "administrative inquiry" but a "judicial
review," the aim of which is “not to punish but to acquire information
from which a punitive proceeding might emerge”:
The
case of Mr. Figueredo is one of involvement by association, owing to the close
connection with the case brought against former President of the Republic Carlos
Andrés Pérez. Because of this particular situation, the fact that the case is
being tried before the highest bench in the Republic is a constitutionally
established functional prerogative that serves as a guarantee deriving
specifically from the need to protect the majesty of the office of President of
the Republic and the incumbent in that august position at the start of the
trial. This guarantee is recognized and established in many constitutional
systems which, even though it may give rise to criminal proceedings that are not
subject to appeal, have nevertheless not in international justice been deemed to
violate human rights even in cases of the trial by association of officials of
lower rank than those protected by this prerogative, such as that of Mr.
Reinaldo Figueredo Planchart today.
35. The Government alleges that Mr.
Figueredo voted without demurral for the lifting of his parliamentary immunity;
that he was given in good time information on the charge against him so that he
could use it in his defense in the "trial," in the current proceeding
against him before the Supreme Court of Justice; that the charge was delivered
to him along with its supporting documents after the preliminary hearing, and
before the opening of the investigation; that "as an additional guarantee
for the accused, he is not being tried by a one-judge court or a chamber, but by
the entire bench – all fifteen members of the Supreme Tribunal of the
Republic.”
36. The Government states that the
preliminary hearing on merits is not a proceeding to determine responsibility,
but an event incidental to the trial on the substance of the charge:
It
is, of course, a single-court trial, but as such is exactly the same as the
single-court trial to which the Venezuelan Government could be subjected if the
Inter-American Commission on Human Rights were to decide to bring action against
it before the Inter-American Court of Human Rights... The hearing on merits does
not determine responsibility, but merely actionability, and is hence incidental
to the trial on the substance of the charge. And it is evident and manifest that
in the trial of the complainant there have been no procedural delays, that is,
no obvious denial of justice, and it is also clear that his lawyers are active
participants in the proceedings…
37. The Government asks the Commission
to disallow the complaint: The Government requests that the complaint presented be
disallowed on the grounds that a) domestic remedies have not been exhausted; b)
the complaint relates to the enjoyment of a privilege of public office, not to
any abridgement of a civil right such as that of defense, which in any case is
guaranteed and being fully exercised by him at present before the Supreme Court
of Justice; c) the assertion that the prosecution's charge and its supporting
documents were not delivered to him in time for use in his defense is false; d)
the dubiousness of his statement that the purpose of the preliminary hearing on
merits was to arbitrarily divest him of his parliamentary status, when it has
been shown that his immunity was lifted with his own affirmative vote, and that
he was then removed by majority vote from the Chamber of Deputies in light of
the findings of the Supreme Court so that he could be called to account for
alleged criminal acts based on the principle of accountability by which citizens
and Government officials are bound; e) his manifest distortion of the procedural
aspects of his trial in deliberately confusing the preliminary stages of the
trial (in which defense is not yet called for) with those parts of the
proceeding devoted to controversy in which he may bring such arguments and
evidence as he deems necessary in defense of his interests; and finally, f) the
unquestionable fact that his lawyers are now acting in full diligence and
publicity, without obstacles of any kind, in a trial that, having proceeded with
all speed and procedural rigor, has now reached the stage when judgment is
pronounced.
38. On February 6, 1997, the Commission
received from the Government a note announcing that on May 30, 1996, "the
Supreme Court of Justice of Venezuela, sitting in plenary, found citizen
Reinaldo Figueredo Planchart guilty of the crime of aggravated generic
misappropriation..." Mr. Figueredo (who was tried in absentia) "was prosecuted for the crimes of aggravated
embezzlement and misappropriation, the trial culminating in the stated verdict,
and there are no other remedies of internal jurisdiction to be interposed
against that decision, because it was handed down by the High Tribunal as
provided in Article 211 of the Venezuelan Constitution." IV.
ANALYSIS A.
Competence of the Commission and formal requirements of admissibility
39. The Commission is competent to
consider the petition in question inasmuch as it concerns violations of rights
recognized in the American Convention. The petitioner may legitimately appear,
and the events alleged in the petition are said to have taken place when the
obligation to respect and enforce the rights established in the Convention was
already in force for the Venezuelan Government[2].
In addition, the Government had already accepted the contentious jurisdiction of
the Inter-American Court of Human Rights when the events occurred[3].
40. The
Commission declared the instant case admissible at its 100th Regular session by
means of Report Nº 81/98 of September 28, 1998.
In the operative part of that report the Commission decided the
following: 1.
To declare the present case admissible. 2.
To notify the Venezuelan Government and the petitioner
of this decision. 3.
To continue its examination of the merits of the case. 4.
To make itself available to the parties for the purpose
of reaching a settlement based on respect for the rights protected in the
American Convention, and to invite the parties to go on record regarding this
possibility within 2 months. 5.
To publish this report and include it in its Annual
Report to the OAS General Assembly.
41. The Government objected, alleging
that domestic remedies have not yet been exhausted, on which basis the
Commission should declare the petition inadmissible. However, the
Commission rejected that argument in its report on admissibility in light of a
note from the Venezuelan Government itself dated February 6, 1997, in which it
stated, inter alia, that on, “May 30, 1996, the Supreme Court of Justice
of Venezuela, sitting in plenary, found citizen Reinaldo Figueredo Planchart
guilty of the crime of aggravated generic misappropriation..." Mr.
Figueredo, who “was tried in absentia,
was prosecuted for the crimes of aggravated embezzlement and misappropriation,
the trial culminating in the stated verdict, and there are no other remedies of
internal jurisdiction to be interposed against that decision, because it was
handed down by the High Tribunal as provided in Article 211 of the Venezuelan
Constitution."
42. Consequently,
the Commission considered
that the requirement of exhaustion of domestic remedies established in Article
46 of the Convention had been met and
declared the instant case admissible.
43. As to
timeliness of presentation, the Commission -in Report Nº 81/98- found that the
petition was lodged within the six-month period laid down in Article 46(1)(b) of
the American Convention and considered that the subject matter of the petition
was neither pending in another international proceeding for settlement, nor was substantially the same as one
previously studied by the Commission or by another international organization. Accordingly, the
requirements set out in Articles 46(1)(c) and 47(1)(d) of the above-cited
international instrument were also met. B.
Points of law raised in the instant case
44. Having
established the positions of the parties and reached a decision on the issues
pertaining to admissibility and the competence of the Commission, the latter
must study the evidence adduced by both parties, in order to determine if the
Government bears international responsibility for the alleged violations of
rights enshrined in the American Convention.
In that context, the Commission deems it necessary first to examine some
of the statements made by the parties in the instant case.
In one of its communications to the Commission, the Government declared inter
alia, "I duly remind you that on May 30, 1996 (...) the Supreme Court of Justice of Venezuela, sitting in
plenary, found citizen Reinaldo Figueredo Planchart guilty of the crime of
aggravated generic misappropriation, categorized in Article 60 of our Organic Law on Protection of Public Assets,
and sentenced him to a term of two years and four months imprisonment and to the
accessory punishments to imprisonment laid out in Article 104 of the same
law."
45. The
Commission does not have authority to issue its opinion on the nature or
seriousness of the criminal offence imputed to the alleged victim.
It takes note of the submissions of the Government in respect of these
points and declares, as it has done on previous occasions, that, "In democratic societies,
where the courts function according to a system of powers established by the
Constitution and domestic legislation, it is for those courts to review the
matters brought before them. Where it is clear that there has been a violation
of one of the rights protected by the Convention, then the Commission is
competent to review.
The Commission has full authority to adjudicate irregularities of
domestic judicial proceedings which result in manifest violations of due process
or of any of the rights protected by the Convention."[4]
46. In light
of these considerations, the Commission will determine the legal consequences of
the facts that it regards demonstrated as being under the framework of its
competence. Furthermore, it will signal whether or not the Government bears
responsibility for violation of the Convention. However, it will not examine the
declarations of the parties on the alleged criminal responsibility of the
supposed victim, which is a matter for the domestic jurisdiction.
47. In that
context it is important to stress that the organs of the American Convention
have competence, pursuant to Article 33 thereof, to determine if the acts or
omissions of any organ of government, the judicial branch included, entail their
responsibility in accordance with the international obligations assumed in good
faith upon ratification of the aforesaid international instrument.[5]
Accordingly, the Commission has full authority to determine if in a given
proceeding whether the judicial guarantees provided in Articles 8 and 25 of the
American Convention were respected. An
assessment as to whether a judicial proceeding satisfies the requirements of
Articles 8 and 25 must be based on the circumstances of each particular case and
on an examination of the proceeding as a whole.[6] C.
Considerations on merits
I.
SUMMARY OF THE DIFFERENT STAGES OF THE TRIAL OF REINALDO
FIGUEREDO PLANCHART
UNDER DOMESTIC JURISDICTION
48. The
record shows that the then-Deputy Reinaldo Figueredo Planchart learned from a
number of news reports in the mass media that the Office of the Comptroller
General of the Republic was conducting an investigation in which he was
implicated in the crimes of generic misappropriation and embezzlement of funds
in February 1989, while he was Minister of the Presidential Secretariat under
the government of then-President of the Republic, Carlos Andrés Pérez.
49. Based on
this information, Reinaldo Figueredo Planchart sent a formal communication dated
May 7, 1993, to the Comptroller General of the Republic.
In reply to that note, the Comptroller General advised Reinaldo Figueredo
Planchart by official letter of May 17, 1993, of an "essentially
documentary investigation" that he had opened ex officio, "for which
no citizen was required to appear or give testimony..." and that he
considered that he had “furnished him with all the information that [he was]
legally able to provide, inasmuch as, by Official Letter Nº 92-2733 dated
December 1, 1992, the Superior Tribunal for the Protection of
Public Assets notified this Office of the
Comptroller General, that the report of November 26, 1992 and its annexes, have
become bound up in a preliminary criminal proceeding and that, accordingly,
their contents must be kept in the utmost secrecy."[7]
50. In a
note of May 26, 1993, to the Comptroller General of the Republic, Reinaldo
Figueredo Planchart requested, inter alia,
that he "order the opening of an administrative inquiry as provided in Article
81 of the Organic Law of the Office of the Comptroller General of the Republic,
based on your express declaration that circumstantial evidence emerged from the
investigation carried out by the Organ over which you preside."
The record shows that this request never received a reply from the
Comptroller General of the Republic.[8]
51. On
November 13, 1992, the Superior Tribunal for the Protection of Public Assets had
also, based on the information reported in the press, opened ex
officio a preliminary inquiry to investigate the presumed commission of a
publicly actionable criminal act. The record shows the testimony given by
Reinaldo Figueredo Planchart, along with his interrogatory conducted by that
tribunal on March 4, 1993. The
record also shows that the aforesaid tribunal did not allow the attorney who was
accompanying Mr. Figueredo to be present during the interrogatory.[9]
Furthermore, it is proven that in its decision on the substance of the
case of May 30, 1996, the Supreme Court of Justice took account of and valued
that interrogatory, stating, inter alia, that "this testimony shows that (...) this
defendant clearly and evidently does not admit any direct guilt whatsoever in
respect of the charges, but rather declares to know nothing about the actions of
the Directors of Administration and Services of the Ministry of the Presidential
Secretariat and of the Interior Ministry. These
submissions by Reinaldo Figueredo Planchart are completely and utterly
false"[10]
The record before the Commission also shows that the Superior Tribunal for
Protection of Public Assets questioned Reinaldo Figueredo Planchart while he
still enjoyed parliamentary immunity in his capacity as Deputy to the Congress
of the Nation.[11]
52. The
investigation of the Comptroller General of the Republic culminated on November
26, 1992, in a report with 11 annexes, which was conveyed to the Superior
Tribunal for the Protection
of Public Assets in response to that
tribunal’s request, inasmuch as it had opened an investigation into the same
matter, and to the Attorney General of the Republic. As the communication from the Comptroller of May 17, 1993,
shows, those investigations were carried out without the testimony of the
suspect and without allowing him access to the report once it was concluded.
53. On March
11, 1993, the Attorney General of the Republic filed ex officio an indictment
and a request for a preliminary hearing on merits with the Supreme Court of
Justice against the then-President of the Republic, Carlos Andrés Pérez and
Congressmen Alejandro Izaguirre and Reinaldo Figueredo Planchart, former
Ministers of the Interior and of the Presidential Secretariat, respectively, for
the criminal offences of generic misappropriation and embezzlement of funds.
54. The
Supreme Court of Justice, sitting in plenary, examined on March 16, 1993, the
request for a preliminary hearing on merits and indictment brought by the
Attorney General of the Republic and decided to refer the respective record to
the Trial Court.
55. The
request for a preliminary hearing on merits and indictment of the Attorney
General of the Republic were admitted on March 17, 1993.
At the prosecutor’s request it was decided to ask the Superior Tribunal
for the Protection of Public Assets for a certified copy of the file of case Nº
92-2713. The Supreme Court, sitting
in plenary, took receipt of those certified copies on March 23, 1993, and
decided to add them to the record.
56. On March
30, 1993, the Supreme Court of Justice sitting in plenary acknowledged receipt
of the records of preliminary proceeding conducted by the Superior Tribunal for
the Protection of Public Assets contained in the file of case Nº 92-2713.
57. The
Commission observes in the record of the case sub
lite copies of the newspapers El
Nacional of May 5, 1993, and of El
Universal of May 6, 1993, setting out the proposed judgment of the Supreme
Court of Justice citing the grounds for prosecuting the persons charged by the
Attorney General of the Republic.
58. The
record shows the decision of the Supreme Court of Justice of May 11, 1993,
denying the request of one of the co-accused, Alejandro Izaguirre, who asked
"very respectfully, that the court order me to be issued with copies of the
prosecutor’s complaint and of its accompanying documents since failure to
comply with such a requirement could result in the absurd circumstance of a
decision issued inaudita altera pars,
in contravention of express constitutional provisions, such as that relating to
the right of defense....”[12]
59. On May
20, 1993, the Supreme Court of Justice, sitting in plenary, declared that there
were sufficient grounds for prosecution of the citizens Carlos Andrés Pérez
Rodríguez, the then-President of the Republic; Alejandro Izaguirre Angelli,
Senator of the Republic, who, at the time of the events, held the position of
Interior Minister; and Reinaldo Figueredo Planchart, Deputy to the Nation’s
Congress, who, at the time of the events, held the position of Minister of the
Presidential Secretariat. On that
same date this court advised the Congress of the Republic of its decision.
60. In its
decision of May 26, 1993, the Supreme Court of Justice decided, inter
alia, "In accordance with the provisions contained in Article 369 of
the Code of Criminal Trial Procedure, the court orders that a complete copy of
the indictment and of its accompanying documents be transmitted to the accused
citizen Carlos Andrés Pérez Rodríguez."
The record does not show that that decision was also adopted in respect
of the other accused persons, one of whom is Reinaldo Figueredo Planchart.
61. On May
27, 1993, the Chamber of Deputies decided to strip Reinaldo Figueredo Planchart
of his parliamentary immunity.[13]
62. On June
8, 1993, the Supreme Court of Justice ordered that the trial underway of Carlos
Andrés Pérez Rodríguez continue in conjunction with that of citizens
Alejandro Izaguirre Angelli and Reinaldo Figueredo Planchart, and with the trial
of those other persons who merited prosecution for the same acts, until final
judgment was rendered. The
Commission observes that the Supreme Court of Justice cites Article 215(1) of
the Constitution as legal grounds to combine the cases of Reinaldo Figueredo and
Alejandro Izaguirre with that of Carlos Andrés Pérez, and to declare itself
competent both to hear and to render final judgment on those cases.[14]
63. The
record shows that on September 29, 1993, during the preliminary hearing stage,
Reinaldo Figueredo Planchart gave informative testimony and was questioned by
the Trial Court of the Supreme Court of Justice.
The Commission also observes that Mr. Figueredo’s defense counsel
accompanied him to the Supreme Court, but was prevented from entering the
courtroom where the interrogatory took place.
Figueredo was questioned by the aforesaid court without the assistance of
his defense counsel.
64. On
November 10, 1993, Reinaldo Figueredo Planchart’s attorneys filed a motion for
nullification and an appeal of “amparo” with the Supreme Court of Justice,
in order legally to invalidate the report of the Comptroller General of the
Republic for having violated his rights of defense and to due process.
In its decision of August 11, 1994, the Political and Administrative
Chamber of the Supreme Court disallowed the
appeal of “amparo,” stating, inter
alia, that "...this Chamber considers that it is impossible and
unfeasible for the Comptroller General of the Republic, in carrying out the
tasks of substantiation assigned to him by the Organic Law on Protection of
Public Assets, to violate the rights of defense, to due process and to a fair
trial, for the precise fact that those undertakings are phases prior to the
start of judicial proceedings in which the participation of the interested
parties goes without saying. Thus
finds the court."[15]
65. On
November 16, 1993, the Supreme Court of Justice denied a request to exclude the
Attorney General of the Republic from the proceedings before that court on the
basis of ensuring a proceeding with full equality for the parties, since the
defense did not have access to the minutes of the preliminary proceeding.
The Supreme Court made clear its interpretation that the preliminary
proceeding is secret and, therefore, the accused has access neither to the
prosecutor’s indictment, nor to the record of the preliminary proceeding, nor
to a defense attorney during that stage of the proceedings. The aforesaid court
said, inter alia, the following:
....in our Code of Criminal Trial Procedure the preliminary proceeding or
inquiry is divided into two parts, phases or stages. The first starts with the
order to proceed (Article 74 of the Code of Criminal Trial Procedure), and is
entirely secret from the person or persons under investigation, but not from the
Judge, the Head Court Clerk, and the clerks, or from the Prosecutor from the
Attorney General’s Office, who is legally required to take part in public
action trials. The second stage or
phase of the preliminary proceeding starts with issuance of the arrest warrant
or of the indictment. The proceeding then ceases to be secret from the criminal
suspect or defendant. Once the
criminal suspect has been detained or the defendant notified, he may then be
informed of the minutes of the preliminary proceedings with the assistance of a
person or attorney of confidence (Article 73 in
fine of the Code of Criminal Trial Procedure).
Thereafter in the proceeding the person under investigation acquires the
legal condition of a party thereto. In
consequence thereof, he shall have access to the record of the preliminary
proceeding and every means of defense that the law provides, the moment the
respective arrest warrant is executed, in accordance with Article 60, clause 1,
paragraph 2 of the Constitution.[16]
Accordingly, this high tribunal cannot approve the request of the
forenamed attorneys because they lack procedural capacity to take part in the
present preliminary proceeding stage. Thus
finds the court.[17]
66. The
record contains a dossier of press cuttings from the newspaper El Universal of April 15 and 30, 1994, in which is published part of
the text of the proposed report of Supreme Court Justice Ismael Rodríguez
Salazar, which contains the warrant for the arrest of Reinaldo Figueredo
Planchart and the other co-accused.
67. On May
10, 1994, the attorneys for Reinaldo Figueredo Planchart filed a petition with
the Supreme Court of Justice in which they denounce the leak and deny the
imputations made by that tribunal through the media.
68. On May
18, 1994, the Supreme Court of Justice ordered the arrest for trial of Reinaldo
Figueredo Planchart and the other co-accused “for the crimes of generic
misappropriation and fraudulent embezzlement of funds, provided for in Articles
60 and 58, respectively, of the Organic Law on Protection of Public
Assets..."[18]
The record shows that that decision makes no allusion to the leaks to the
media or to the petition filed by the accused’s attorneys.
69. On June
9, 1994, the Trial Court of the Supreme Court of Justice decided that,
"having seen the request submitted by the defenders of the accused Reinaldo
Figueredo Planchart, in which they ask that the date and time be set for
presentation of the signed statement of their client, such request is denied on
the ground that the aforementioned accused is not in court and the presentation
of a signed statement is a strictly personal act reserved for the accused."[19]
70. On June
17, 1994, Trial Court of the Supreme Court of Justice issued a ruling in which
it declared the preliminary proceeding concluded.
71. On June
21, 1994, the defense counsel for the accused requested the Trial Court of the
Supreme Court of Justice for a complete ordinary copy of the record of case Nº
0588 and all its annexes, given that said court had declared the preliminary
proceeding concluded on the 17th day of that same month and year.
On June 22, 1994, the aforesaid court stated that "[Having seen the
request submitted by Dr. Carlos Armando Figueredo, in his capacity as
provisional defense counsel for the accused Reinaldo Figueredo Planchart, dated
the 21st day of the present month, the court decides to agree to that
request. Let it be provided
accordingly."[20]
The record shows that this was the first time –following the conclusion
of the preliminary proceeding and the issuance of the warrant for his arrest--
that Reinaldo Figueredo Planchart had access to the proceeding its record.
72. On
November 15, 1994, the Supreme Court of Justice set the public hearing of the
accused for November 22, 1994. Reinaldo
Figueredo Planchart was out of the country.
73. On
February 15, 1995 the Supreme Court of Justice issued an order of attachment of
the property belonging Reinaldo Figueredo Planchart and the co-defendants.
Justice Rafael Alfonzo Guzmán dissented with that decision and declared
to the media, in reference to the attachment order issued by the court,
"that it was more for effect than actually effective, because criminal
offenders of this kind never put their property in their own name; on the other
hand, it is obvious that they possess works of art, corporate stocks, very
powerful corporations that own all kinds of real estate, cash, foreign exchange,
jewelry, none of which need be registered or certified by a notary in order to
be transferred." The aforesaid
Justice further noted, "that these measures are ineffective in this
particular case and in all cases where a crime against public assets is
concerned because precisely this type of offender and this type of crime have
the effect of ensuring that nobody keeps property of any significant value in
their own name, in order to avoid its attachment specifically by this type of
measure."[21]
Justice Guzmán also issued the same statements on Friday, February 17,
1995, on the 8:00 p.m. news program on Canal 10, owned by the company TELEVEN.
74. On March
30, 1995, the attorneys for the defense submitted to the Supreme Court a request
for recusation of the justice who issued statements to the press.
A few weeks after the request for recusation was made, that justice was
elected President of the Supreme Court of Justice.
The recusation was disallowed on May 8, 1995 by Justice Josefina Calcaño
Temeltas, First Vice President of the Supreme Court of Justice.
75. The
record contains a copy of the newspaper El
Nacional of January 25, 1996, which published the transcript of a televised
interview with the then-President of the Republic of Venezuela Rafael Caldera,
who, in reply to question about the possibility of granting a pardon to one of
the defendants, said, "I think that, while there may be a reasonably large
sector who would wish that, the vast majority of the country would regard it as
a kind of fraud, a kind of inconsistency, a failure to recognize the conviction
that it behooves the Supreme Court of Justice to hand down, in accordance, apart
from anything else, with the expectation that has formed in the minds of the
Venezuelan public.”[22]
76. The
record contains a copy of the newspaper El
Nacional of February 1, 1996, which published a statement by the
then-Prosecutor General, Jesús Petit da Costa, which says, inter
alia, that "the pressure on the Supreme Court of Justice is being
exerted by those who (...) lodged and are pursuing a petition with the
Inter-American Commission on Human Rights."[23]
77. The
record contains a copy of the newspaper El
Nacional of April 19, 1996, its front page headline reading, inter
alia: "Justice Luis Manuel Palis proposes four years imprisonment.
The Justice in charge of submitting the proposed decision for approval by
the other members (...) finds that there was aggravate misappropriation of
funds, but dismissed the charges of embezzlement. (...) Reinaldo Figueredo would
be sentenced to two years and four months imprisonment....”[24]
Justice Luis Manuel Palís was the judge who proposed the decision in the
case of Reinaldo Figueredo Planchart.
78. In its
decision of May 30, 1996, the Supreme Court of Justice found Reinaldo Figueredo
Planchart
guilty
of the crime of aggravated generic misappropriation categorized in Article
60 of the Organic Law on Protection of Public Assets,
which act was committed in the place, manner and time that have been shown, and
sentenced him to a term of two years and four months imprisonment in the penal
establishment that the National Executive Branch designates, and to the
accessory punishments to imprisonment laid out in Article 104 of the Organic Law
of Protection of Public Assets, which are: disqualification from participation
in government for the duration of the conviction, and disqualification for the
same amount of time from public office or posts. By the same token the court
sentences the aforesaid accused to provide restitution, reparation or
compensation for the damages inflicted on public assets, once the corresponding
amount has been established by the expert appraisal that was ordered performed
to that end. All the foregoing is
in accordance with the provisions of Articles 60, 100 and 104, of the Organic
Law for Protection of Public Assets, in respect of Article 37 of the Criminal
Code, and the heading of Article 43 of the Code of Criminal Trial Procedure.[25] II.
SCOPE OF APPLICATION OF THE AMERICAN CONVENTION IN THE PROSECUTION OF
REINALDO FIGUEREDO PLANCHART IN DOMESTIC JURISDICTION
79. In a
note of October 4, 1994, the Commission submitted for the consideration of the
parties a questionnaire with several questions relating to the trial in
Venezuela of Reinaldo Figueredo Planchart.
Thus, the Commission asked, "In accordance with Article 8 of the
American Convention, what is the scope of application of judicial guarantees in
the instant case? Do they apply,
for instance, to preliminary proceedings or to administrative proceedings?”
80. The
Government, citing Article 215 (1) and (2) of the Constitution, as well as
Articles 146 to 154 of the Organic Law of the Supreme Court of Justice, declared
that a preliminary hearing on
merits is neither a trial nor a proceeding to determine responsibility of any
kind. The
Government added that the Supreme Court of Justice does not institute judicial
proceedings designed to incriminate or exonerate a person of a given act and
that this stage is a functional prerogative established to protect high-ranking
government officials against reckless lawsuits.
Consequently, the Government concluded that the judicial guarantees
enshrined in the American Convention do not apply during the stage of
preliminary hearings on merits before the Supreme Court of Justice.
81. With
respect to whether the aforementioned judicial guarantees apply to
administrative proceedings, the Government declared that the American Convention
only applies to administrative proceedings for imposing punishment.
The Government added that in Venezuelan law there is an accepted trend
that judicial guarantees are applicable in administrative proceedings aimed at
imposing punishments for administrative violations or offences; in particular,
the principle of freedom from ex post facto laws on violations or offences, the
principle of due process and, within that, the principle of the right of
defense. Nevertheless, the
Government also stated that in this case the judicial guarantees enshrined in
the Convention do not apply on the ground that the administrative proceeding
instituted by the Office of the Comptroller General of the Republic was not an
administrative inquiry but a judicial review. The Government indicated that
aim of the latter is not to punish but to acquire information from which a
punitive proceeding might emerge.
The Government further stated that since, in the opinion of the Office of
the Comptroller General, that judicial review uncovered evidence of civil and
criminal responsibility, which is not a matter for that office to resolve, the
said agency referred the findings of that review to the Superior Tribunal for
the Protection of Public Assets and to the Attorney General of the Republic.
82. The
petitioners, for their part, stated that the guarantees contained in Article 8
of the Convention should apply both to administrative proceedings and to
preliminary hearings on merits before the Supreme Court of Justice; particularly
if the latter might result in punishments of a criminal nature.
According to the petitioners, the Constitution and administrative law in
Venezuela provide for due process, which has been denied in practice by the
intervening administrative and judicial organs.
The Government’s submission that the Office of the Comptroller General
of the Republic is an organ whose functions are exclusively administrative,
which lacks the jurisdictional powers of the Judicial Branch, and which, for
that reason, is excused from the duty to respect rights relating to judicial
guarantees, is inconsistent with the obligations of the Government of Venezuela
under the American Convention and its own domestic laws.
The petitioners add that the Office of the Comptroller General carried
out a "documentary investigation," on the basis of which the accused
was deprived of his right of defense and his right to a fair trial in accordance
with the guarantees of due process. The
petitioners say that the rights violated by the investigation conducted by the
Office of the Comptroller General were as follows: a) right of defense, b)
access to an independent and impartial tribunal, c) right to due process, and d)
access to the records of the proceeding.
83. Having
summarized and studied the positions of the parties, the Commission must
determine whether in the case sub lite
the guarantees of due process [Articles 8 and 25] enshrined in the American
Convention are applicable to the preliminary stages of the judicial proceeding
instituted against the supposed victim. In
connection therewith, the Commission observes that neither Article 8 nor Article
25 of the Convention establish at which stage of a proceeding to substantiate a
criminal accusation the criminal suspect is entitled to exercise his rights of
defense and to due process.
84. Nevertheless,
the Inter-American Court has interpreted Articles 8 and 25 of the Convention as
provisions that do not
recognize any judicial guarantees, strictly speaking, but that contain the procedural requirements that should be
observed in order to be able to speak of effective and appropriate judicial
guarantees under the Convention.[26]
85. By the
same token, the European Court of Human Rights, in analyzing Article 6(1) of the
European Convention, which is similar to Article 8(1) of the American
Convention, stated that "In
a democratic society within the meaning of the Convention, the right to a fair
administration of justice holds such a prominent place that a restrictive
interpretation of Article 6 para. 1 (art. 6-1) would not correspond to the aim
and the purpose of that provision."[27]
This approach is consistent with the emphasis that the Inter-American
Court gives to due process within the context of a democratic society.[28]
86. By the
same reasoning, the European Commission of Human Rights established in the case
of Joseph Kaplan v. United Kingdom that "...the law of the State
concerned cannot limit the application of the European Convention on Human
Rights. The autonomous nature of
the protection afforded by Article 6(1) makes up for the shortcomings of the
laws of the United Kingdom, which does not provide adequate protection to the
same extent that other states party to the Convention do."[29]
In reaffirming this interpretation, the European Court of Human Rights,
in the case of Feldbrugge v. The Republic of Holland, decided that in respect of
"... the applicability of Article 6 para. 1 (art. 6-1) and its specific
judicial guarantees (…) Of course, it is equally essential that in the
administrative field justice should be done.”[30]
87. The
Commission observes that both the case law of the European system for protection
of human rights and that of the inter-American system clearly establish that
States may neither limit nor restrict the application of the guarantees of due
process to the final phase of a criminal proceeding, particularly if the
preliminary phase has legal implications for the civil rights of the accused. Thus, for instance, the European Court and Commission
consider that the following rights should apply to preliminary proceedings in a
criminal trial: 1) the right to legal assistance of his own choosing;[31]
the right to have adequate time and facilities for the preparation of his
defense,[32]
the right to defend himself[33]
the right to be informed of the nature and cause of the accusation
against him;[34]
the right to examine witnesses;[35]
the right to remain silent;[36]
and the right to have the free assistance of an interpreter.[37]
The generally recognized principal, as the European Court of Human Rights has
stated, is that the guarantees of due process apply to proceedings prior to
trial, including preliminary investigations, "if and in so far as
the fairness of the trial is likely to be seriously prejudiced by an initial
failure to comply with them."[38]
88. In
keeping with this analysis, the position of the Venezuelan Government is clearly
incompatible with the case law of the European and inter-American systems for
protection of human rights, particularly if we take into account its submission
that a person subject to its jurisdiction is not entitled to the guarantees of
due process recognized by the Convention in the context of an administrative
investigation[39]
or in a preliminary hearing on merits conducted by the Supreme Court of Justice.[40] Nor may the Government invoke its
domestic legislation to disavow these rights, inasmuch as, “[t]he protection of human rights, particularly the civil
and political rights set forth in the Convention, is in effect based on the
affirmation of the existence of certain inviolable attributes of the individual
that cannot be legitimately restricted through the exercise of governmental
power. These are individual domains that are beyond the reach of the State or to
which the State has but limited access.”[41]
89. Having
determined the scope of application of the Convention, the Commission must
evaluate if the guarantees of due process to which Reinaldo Figueredo Planchart
was entitled were actually violated by the Government of Venezuela in the
different stages of the trial that ended with the final judgment issued by the
Supreme Court of Justice.
[ARTICLES 8 and 25 OF THE CONVENTION]
90. In their
original complaint the petitioners declared to the Commission that the
Venezuelan Government violated, inter alia, Articles 8(1), (2)(b), (d), (f),
(h), and 25 of the Convention to the detriment of Reinaldo Figueredo Planchart,
as a result of the events that took place in Caracas, Venezuela, as from
November 10, 1992, the date on which the Office of the Comptroller General of
the Republic opened ex officio an administrative investigation that ended with a
criminal trial before Supreme Court of Justice, which issued a conviction on May
30, 1996. According to the
petitioners, the Government violated the guarantees of due process to which
Reinaldo Figueredo Planchart was entitled by law during the administrative
investigation stage, as well as during the Supreme Court’s preliminary hearing
on merits and investigation prior to the issuance of the warrant for his arrest.
91. The
petitioners cite the following provisions contained in the Convention:
Article 8. Right to a
Fair Trial
1. Every
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature
made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.
2. Every
person accused of a criminal offense has the right to be presumed innocent so
long as his guilt has not been proven according to law.
During the proceedings, every person is entitled, with full equality, to
the following minimum guarantees:
b. prior notification in detail to
the accused of the charges against him;
d. the right of the accused to
defend himself personally or to be assisted by legal counsel of his own
choosing, and to communicate freely and privately with his counsel;
f. the right of the defense to
examine witnesses present in the court and to obtain the appearance, as
witnesses, of experts or other persons who may throw light on the facts;
h. the right to appeal the judgment
to a higher court.
5. Criminal
proceedings shall be public, except insofar as may be necessary to protect the
interests of justice.
Article 25. Right to
Judicial Protection
1. Everyone has the right to simple and prompt recourse,
or any other effective recourse, to a competent court or tribunal for protection
against acts that violate his fundamental rights recognized by the constitution
or laws of the state concerned or by this Convention, even though such violation
may have been committed by persons acting in the course of their official duties.
92. Article
8 of the American Convention establishes a series of procedural requirements that should be observed in
order to be able to speak of effective judicial guarantees.[42]
That Article enunciates rights and guarantees which are distinct
but stem from the same basic idea and which, taken together, make up a single
right not specifically defined but whose
unequivocal purpose is ultimately to ensure the right of every person to a fair
trial.[43]
This right is a basic guarantee of respect for the other rights
recognized in the Convention, due to the fact that it represents a limitation on
the abuse of power by the State.[44]
93. Furthermore,
it is essential to remember that both Article 8 and Article 25 of the American
Convention "are
necessary conditions for the procedural institutions regulated by the Convention
to be considered judicial guarantees."[45] It
should be mentioned that, “Guarantees are designed to protect, to
ensure or to assert the entitlement to a right or the exercise thereof.”[46]
Article 25(1) [of the American
Convention] incorporates the principle recognized in the international
law of human rights of the effectiveness of the procedural instruments or means
designed to guarantee such rights.[47]
[F]or such a remedy to exist, it is not sufficient that it be
provided for by the Constitution or by law or that it be formally recognized,
but rather it must be truly effective in establishing whether there has been a
violation of human rights and in providing redress.[48]
In that sense the Court has
concluded that, “A remedy which proves illusory because of the general
conditions prevailing in the country, or even in the particular circumstances of
a given case, cannot be considered effective."[49]
94. Right
to a natural judge and competent tribunal.
Article 8(1) of the Convention provides, among other rights and
guarantees, that every
person has the right to a hearing (...) by a competent (...) tribunal,
previously established by law, in the substantiation of any accusation of a
criminal nature made against him.
The Inter-American Court, on examining the natural judge issue, declared,
inter alia, that, "it is a basic
principle relating to the independence of the judicature that every person has
the right to be tried in the ordinary courts of justice in accordance with
legally established procedures."[50]
95. The
Commission observes in the record that the Supreme Court of Justice ordered on
June 8, 1993, that the trial of the then-President of the Republic, Carlos Andrés
Pérez, continue in conjunction with that of Reinaldo Figueredo Planchart,
“and with the trial of those other persons who merited prosecution for the
same acts, until final judgment is rendered."[51] The
Supreme Court cited Article 215(1) of the Constitution as legal basis for making
such a decision.
96. Article
215(1) of the Constitution de Venezuela states, to the letter, the following:
The Supreme Court of Justice has the power:
1. To
declare whether or not there are grounds to try the President of the Republic,
or whomsoever acts in his stead, and, in the event of the affirmative, to
continue, subject to authorization from the Senate, to hear the case and to
render final judgment thereon.
97. As can
be observed, the constitutional provision, a norm of the highest rank, clearly
establishes the procedure that the Supreme Court must follow in order to try the
President of the Republic in a single-court proceeding ending with a final
judgment. The Commission further
finds that the Venezuelan Constitution leaves no void or legal loophole in
respect of the procedure to follow when the defendant is a member of the
Congress of the Republic, as Reinaldo Figueredo Planchart was.
In the second clause of the same article (Article 215), the Constitution
signals that the aforesaid court has the power: To
declare whether or not there are grounds to try members of the Congress, or of the
Court itself, Ministers, the Attorney General, the Prosecutor General, or the
Comptroller General of the Republic and,
in the event of the affirmative,
to refer the record to the competent ordinary court, should the offence be a
common one, or, if the case concerns political crimes, to continue to hear the case
and to render final judgment thereon, except as provided otherwise in Article
144 with respect to members of the Congress. [52]
(emphasis added).
98. Given
that the crimes with which Reinaldo Figueredo Planchart was charged were common
ones --generic misappropriation and embezzlement of funds-- the Supreme Court,
having decided that there were grounds to prosecute the accused, should have
complied with the constitutional mandate and referred the record to the
competent tribunal of the general jurisdiction --in this case, the Superior
Tribunal for the Protection of Public Assets.
99. The
Government itself confirmed the foregoing in its communication of January 23,
1996, when it said, inter alia, that:
Had the Superior Tribunal for the Protection of Public Assets determined
that the claimant in his dual capacity as a former cabinet minister and a
parliamentarian was implicated in the unlawful acts under investigation, by law
the aforementioned court had the opportunity to try him, once the preliminary
hearing on merits had been conducted and, as applicable, once the claimant had
been stripped of his parliamentary immunity (Article 144 of the Constitution and
Article 87 of the Organic Law on Protection of Public Assets).
100. The
Commission does not share the Government’s view that the Superior Tribunal for
the Protection of Public Assets "had the opportunity to try him" given
that the constitutional mandate was very clear: the Supreme Court of Justice may
only try in a single-court proceeding ending with a final judgment a person who
acts in the capacity of President of the Republic, but not a member of congress
or parliamentarian. In the
Commission’s opinion, the Supreme Court of Justice encroached upon the
jurisdiction that belonged to the Superior Tribunal for the Protection of Public
Assets. Moreover, the latter should have acted as a court of first instance, so
that the accused could appeal to a higher court if the decision was unfavorable
to him. That was denied to him in practice by the Supreme Court, which tried him
in a single-court proceeding that ended with the final judgment and conviction
it issued on May 30, 1996.[53]
101. In
consequence, the Commission finds that the Venezuelan Government violated
Reinaldo Figueredo Planchart’s right to a
hearing by a competent tribunal in the substantiation of the criminal accusation
against him, recognized in Article 8(1) of the Convention.
102. Right to a
hearing by a tribunal with the guarantee of the right of defense and access to
domestic remedies [articles 8(1), 8(2) (d), and 25(1) of the convention].
Article 8(1) of the Convention establishes the obligation of the
courts of justice to provide a hearing, with the necessary guarantees, to every
person who has had criminal charge made against him. One of these guarantees is that provided in Article 8 (2) (d)
of the Convention, which states that the accused
has the right to “defend himself personally or to be assisted by legal counsel
of his own choosing.” By the same
token, Article 25(1) of the Convention requires the State to provide for all
persons subject to its jurisdiction a simple and prompt recourse for
protection against acts that violate their fundamental rights.
The Inter-American Court has declared that these Articles recognize the
concept of "due process of law," which includes the prerequisites
necessary to ensure the adequate protection of those persons whose rights or
obligations are pending judicial determination."[54] The
Commission also has stated, "To deny an accused access to the courts in
order to assert his rights is to prevent him from obtaining remedies or
receiving a trial based on the merits of the case and constitutes in effect a
violation of the right to judicial protection guaranteed by Article 25 of the
American Convention on Human Rights.”[55]
103. In the light
of these principles and having conducted a thorough examination of the
proceeding, the Commission finds that from November 1992 –when the Government
opened ex officio the investigation of Reinaldo Figueredo Planchart, which
concluded with the conviction issued by the Supreme Court of Justice-- to June,
1994, when that tribunal agreed to grant him access to the record of the case on
the basis that the secret preliminary proceeding had concluded and a warrant for
his arrest had been issued, the accused was unable to exercise his right to a
hearing by any administrative or judicial organ in the presence of his attorney. It is proven, furthermore, that during this crucial stage of
the proceeding the accused was also not permitted to present evidence in his
defense or to cross-examine witnesses called by the Government. Finally, the
accused also received no prior notification of the charges against him.
It is also proven that the few recourses that are permitted by Venezuelan
positive law against a --single-court-- proceeding before the Supreme Court of
Justice were attempted by the accused to no avail, since in the opinion of that
court the right of defense may not be exercised in any of the stages prior to
issuance of the arrest warrant, which –under Article 103 of the Organic Law on
Protection of Public Assets-- does not permit release on probation or bail.[56]
104. Indeed,
through his communication of May 17, 1993, the Comptroller General of the
Republic confirmed to Reinaldo Figueredo Planchart that he had been under
investigation since November 10, 1992, and that this "documentary
investigation"--which ended with a report and 12 annexes-- did not require
“any citizen to be summoned or to give testimony.”
On a later date the Comptroller also informed Figueredo that he was
unable legally to give him further information because the report and its
annexes had become bound up in a preliminary criminal proceeding, which, under
Venezuelan positive law, was of a confidential nature.
The Comptroller also informed Figueredo that this "documentary
investigation" was legally grounded in Articles 234 of the Constitution; 1
of the Organic Law of the Office of the Comptroller General of the Republic; and
25 and 30 of the Organic Law on the Protection of Public Assets.[57]
In response, Figueredo Planchart filed an appeal of “amparo” with the
Supreme Court of Justice, which upheld the version of the Comptroller General
upon stating that right of defense does not apply since this stage precedes the
start of a judicial proceeding.[58]
105. In spite of
what the Comptroller and the Supreme Court of Justice said, the Commission finds
that when the administrative authority addresses the criminal suspect giving the
legal grounds for his position, he does so citing articles of laws that do, in
effect, accord him competence to conduct the investigation that he did carry
out, but he neglects to establish the legal grounds for the procedure he was
required to follow. Moreover, none of the legal provisions cited by the
Comptroller indicate the scope and procedure for his self-proclaimed
"documentary investigation.” However,
Article 83 of the Organic Law of the Office of the Comptroller General of the
Republic does clearly establish the following:
Having opened the inquiry, the office of the Comptroller General shall
gather testimonies, expert opinions, reports and any other evidence it deems
necessary to clarify the facts of the matter.
If, in the course of that
activity, circumstantial evidence were to emerge incriminating a person, the
Office of the Comptroller General shall summon him, in order to testify within
ten (10) calendar days from the date of the summons, on which occasion it
shall take his testimony and inform him of the charges against him.
If the person under investigation fails to appear to give testimony he
shall be penalized in pursuance to Article 94 of this Law, without prejudice to
the inquiry continuing in absentia (emphasis added).
106. As can be
seen, the Organic Law of the Office of the Comptroller General of the Republic
did establish a procedure to follow, and that procedure provided the person
under investigation the right of defense, which, moreover, was compatible with
the Regulations –not once cited, either by the Comptroller General or by the
Government-- of the Organic Law of the Office of the Comptroller General, which
states in Title IV (Procedures), Chapter V (Procedure in Administrative
Inquiries) that:
Article 49.- All
inquiries carried out by the Office of the Comptroller General shall be secret,
except from the criminal suspect, once he has been informed of the charges
against him (...).
Article 52.- The
inquiry having been opened, such proceedings as are deemed indispensable shall
be carried out. Once the latter
have been conducted, the order shall be given to serve the presumed culprit with
a summons in order to inform him of the charges against him and to hear his
testimony. If the criminal suspect
so requests, the Office of the Comptroller General shall grant him a period of
not less than fifteen, nor more than forty-five, calendar days in which to
respond to the charges, to present evidence and to submit such documents as he
deems pertinent in order for them to be added to the record and to be taken into
consideration in the decision on the matter.
107. On the issue
of the right of defense, the legal doctrine of the Office of the Attorney
General of Venezuela in relation to the Constitution and administrative
litigation also confirms the above-cited procedure:
This right pertains to the classic principle of audire
alteram partem, according to which a person affected by any potential
administrative decision must receive a prior hearing, which presupposes
participating in the proceeding, thereby acting with sufficient guarantees to
defend himself (...).The principle of audire
alteram is protected by the Constitution (Article 68 in fine) [and, accordingly], a constitutional guarantee is violated
when this principle is infringed by the administrative authorities in an
investigation procedure.[59]
108. By the same
token, the Political and Administrative Chamber of the Venezuelan Supreme Court
of Justice interprets the right of defense in the same way:
The right of defense should be regarded not only as the opportunity for
the citizen on trial or alleged offender to ensure his pleas are heard, but also
as the right to demand the Government’s compliance, prior to imposition of any
punishment, with a series of acts or proceedings designed to enable him to the
exact nature of the charges against him, and the legal provisions applicable
thereto; submit arguments in his defense; and to obtain and provide evidence in
his favor. This perspective view of
the right of defense is comparable with what other states that are governed by
law have termed the principle of due
process.[60]
It establishes, as an implicit consequence of law, a constitutional duty
for the competent official to provide hearings to the interested party before
adopting a decision that affects his rights and interests.[61]
109. In addition,
the First Chamber for Administrative Disputes, in its judgment of July 7, 1988,
stated that:
The hearing of the interested party, as a procedural act, is necessary
and essential in so-called punitive proceedings, inasmuch as in these cases,
through a hearing of the interested party, the justice administration formally
apprises the person subject to the jurisdiction of the administrative tribunals
of a proceeding against him based on an illegal act allegedly committed by the
latter, which, if found to be true, would result in his punishment.[62]
110. Clearly, both
the provisions contained in the Organic Law of the Office of the Comptroller
General and in the Regulations governing that Law, and Venezuelan case law on
the subject of the right of defense, establish that the administrative authority
was required to follow a procedure that went beyond the simple appearance of the
person under investigation, since that procedure granted him a period of time in
which to reply to the charges and to adduce evidence and other factors that
would serve as a basis for the Comptroller General ultimately to adopt a
decision in accordance to law. However,
the Comptroller General, in violation of the rules of due process, carried out a
one-sided investigation and drew up a report with 12 annexes, which served as
grounds for convicting Reinaldo Figueredo Planchart in a judicial proceeding.
Objective examination of the above-cited provisions clearly reveals that
the intention of the lawmaker was to provide persons under investigation with a
legal procedure that offered minimum guarantees of security.
This protection functions in favor not only of the person under
investigation but also of the public administration, which could easily be
harmed by the absence of due process, which would utterly invalidate the
proceeding and render any conclusion null and void.
111. In the case sub lite, it was not only the administrative authorities, but also
the judicial authorities, that violated due process. Indeed, it is shown that Reinaldo Figueredo Planchart was
questioned on two consecutive occasions during his trial without the assistance
of an attorney. More serious still
is that on both occasions the accused arrived at the courthouse accompanied by
his defense counsel but the latter was barred from the courtroom by the judges.
These events occurred on November 13, 1992, before the Superior Tribunal
for the Protection of Public Assets, and on September 29, 1993, before the Trial
Court of the Supreme Court of Justice.
112. The
Inter-American Commission cannot consider these appearances to constitute
effective observance of the right of the accused to a hearing by a tribunal,
since the guarantees provided by the right of defense as enshrined in Article
8(2)(d) of the Convention were systematically violated by the courts.
In the opinion of the Commission, these proceedings, in which the person
under investigation appears without the assistance of an attorney at an
interrogatory based on a case record with which he is not familiar and without
knowing the nature of the criminal charges against him, do not no constitute
exercise of the right to a hearing by a tribunal as recognized in Article 8(1)
of the Convention. To provide a
hearing to a person under investigation implies permitting him to defend himself
adequately, with the assistance of an attorney, in knowledge of all the evidence
mounted against him; to provide him with a hearing is to permit him to be
present at the examination of any witnesses that testify against him, to permit
him to challenge their testimony, and to cross-examine them in order to
discredit their incriminating statements as contradictory or false; to provide
an accused with a hearing is to give him the opportunity to deny and to detract
from the documents sought to be used against him. It is shown that the accused did not have access to these
rights in all the stages prior to the issuance of the warrant for his arrest,
which, in practice, prevented him from defending himself while at liberty.
In other words, a warrant was issued for the arrest of Reinaldo Figueredo
Planchart without his having been given a hearing with all the guarantees of due
process in the substantiation of the
accusation of a criminal nature made against him.
113. The
aforementioned violations of due process were confirmed by the decision of the
Supreme Court of Justice of November 16, 1993, whereby it established
jurisprudence that runs contrary to the international obligations adopted by
Venezuela upon its signing and ratification of the American Convention.
Indeed, the aforesaid tribunal stated, inter alia, that once “the criminal suspect has been arrested
(...) he may then be informed of the minutes of the preliminary proceedings with
the assistance of a person or attorney of confidence. Thereafter in the
proceeding the person under investigation acquires the legal condition of a
party thereto. In consequence
thereof, he shall have access to the record of the preliminary proceeding and
every means of defense that the law provides, the moment the respective arrest
warrant is executed."[63]
114. Bearing in
mind that the victim is entitled to international protection for his human
rights, the Government must ensure respect for so-called due
process of law, in order to
guarantee an adequate defense for those whose rights and duties are involved.
In the opinion of the Commission, the fact that a procedural stage
happens to be a secret preliminary proceeding or a preliminary hearing on merits
is immaterial under the international law of human rights if such a proceeding
ends in a decision that affects to varying degrees the situation of the person
involved: loss of freedom and even --under Venezuelan positive law-- denial of
release on probation. Put another
way, preliminary hearings and secret preliminary proceedings are so closely
associated with the criminal trial that to address them as separate would
restrict and substantially weaken the protection afforded by due process of law
to which all persons accused of an offense are entitled.
By that token, a judicial decision that hinders, prohibits, or limits a
person’s right of defense at this stage of the proceeding constitutes a
violation of Article 8(1) and 8(2)(d) of the Convention.[64]
115. The
Commission further observes two dissenting votes by Supreme Court Justice
Hildegard Rondón de Sansó, in which she confirms what the Inter-American
Commission has stated in respect of the right of defense of Reinaldo Figueredo
Planchart.[65]
116. Upon
examining the final judgment of the Supreme Court of Justice of May 30, 1996,
the Commission finds that said tribunal does in effect disregard the arguments
of Reinaldo Figueredo Planchart’s defense counsel with respect to the
violations of due process. Indeed,
that judgment states, inter alia, that
"the defense counsel of the accused Reinaldo Figueredo Planchart alleges
(...) that due process was violated in the preliminary hearing on merits and in
the preliminary proceeding stage, on the basis of breach of the right of defense
and the right to a hearing, thereby denying their right to be presumed
innocent."[66] The
judgment of the Supreme Court goes on to reject those arguments, inter
alia, by reason that "the above-submitted arguments of the defense are
disproved by the factual and legal reasons that were set out in Chapter III of
the present judgment."[67]
However, careful reading of the abovementioned chapter reveals neither an
allusion to the procedural rights of the victim, nor an analysis of the evidence
adduced by the defense when permitted to do so by the aforesaid tribunal.[68]
117. In the light
of the foregoing factual and legal reasoning, the Inter-American Commission
finds that the Venezuelan Government bears international responsibility for the
violations of Articles 8(1), 8(2)(d) and 25(1) in connection with Article 1(1)
of the Convention to the detriment of Reinaldo Figueredo Planchart, based on the
events that occurred in Caracas, Venezuela, between the month of November 1992,
when he became the subject of an administrative investigation, and May 30, 1996,
when the Supreme Court of Justice delivered a judgment convicting him.
The record shows that from November 1992 to June 22, 1994, the accused
did not have access to the aforementioned minimum guarantees of due process to
which he was entitled by virtue of the international obligations assumed by
Venezuela upon its ratification of the American Convention on August 9, 1977.
118. Right to
be presumed innocent [article 8(2) of the Convention.
Article 8(2) of the Convention provides, inter
alia, that, "Every person accused of a criminal offense has the
right to be presumed innocent so long as his guilt has not been proven according
to law."
Of all the guarantees that pertain to the criminal justice, perhaps the
most elementary is the right to be presumed innocent, which is expressly
recognized without any reservation or exception by various international
instruments on human rights, such as the Universal Declaration, the
International Covenant on Civil and Political Rights, the American Declaration,
and the American Convention.
119. This
provision grants in favor of the accused the presumption that the latter must be
considered innocent and be treated as such, until his criminal responsibility
has been determined by a final judgment. The
principle of presumption of innocence demands “that the conviction and,
therefore, the application of the penalty may only be founded upon the assurance
of the court regarding the existence of a punishable act attributable to the
accused."[69]
The judge upon whom it devolves to take cognizance of the indictment is
under obligation to address the case without prejudgment and must on no account
assume a priori the accused to be
guilty.[70]
On contrary, the American Convention requires that, in accordance with
due process of law and with universally accepted principles of criminal law, the
judge confine himself to determining criminal responsibility and to sentencing
the accused based on his appraisal of the evidence to hand.
The right to be presumed innocent has led modern criminal law to impose
the general rule that all persons indicted in a criminal proceeding must be
tried at liberty and that only by exception may the accused be deprived of his
freedom.
120. Given that
the accused, Reinaldo Figueredo Planchart, was unable to exercise his right of
defense from the start of the investigation against him until the issuance of
the warrant for his arrest, and that this judicial decision did not permit, at
the time of the events, his release on probation or on bail,[71]
the Commission considers that the right to be presumed innocent enshrined in
Article 8(2) of the Convention was violated.
The Commission regards as grave the fact that the decision to issue the
order of imprisonment was made without the accused having had the opportunity to
exercise his right of defense, or to have the benefit of the guarantees of due
process to which he was fully entitled prior to the issuance of the warrant for
his arrest.
121. In the case
of Minelli v. Switzerland, the European Court of Human Rights has
clearly defined how a Government may violate the right of an accused to be
presume innocent:
In
the Court's judgment, the presumption of innocence will be violated if, without
the accused's having previously been proved guilty according to law and,
notably, without his having had the opportunity of exercising his rights of
defense, a judicial decision concerning him reflects an opinion that he is
guilty.[72]
122. As in the Minelli case, the presumption of innocence was violated in the case sub
lite by a judicial decision that deprived the accused of his liberty and,
accordingly, reflected an opinion that that he was guilty, without his having
had the opportunity of exercising his rights of defense.
The decision of the Supreme Court of Justice of May 18, 1994, in whose
444 pages it issues a warrant for the arrest pending trial of Reinaldo Figueredo
Planchart, readily reflects the opinion that he is guilty: "From the
evidence outlined above there emerges firm indications of the guilt of the
accused (...) Reinaldo Figueredo Planchart in the perpetration the crimes of
generic misappropriation and fraudulent embezzlement of funds, committed in the
above-described circumstances, provided for and punished in Articles 60 and 58,
respectively, of the Organic Law on Protection of Public Assets. Based on the above considerations and in accordance with the
considerations foregoing, the Supreme Court of Justice, sitting in plenary,
administering justice in the name of the Republic, and by authority of the Law
(...) orders the arrest pending trial (...) of the citizens (...) above
identified, for commission of the crimes of generic misappropriation and
fraudulent embezzlement of funds... ."
123. In the
opinion of the European Court of Human Rights, "a decision that amounts in substance to a
determination of the accused's guilt without his having previously been proved
guilty according to law and, in particular, without his having had an
opportunity to exercise the rights of the defence"[73] constitutes a violation of the principles
that recognize the presumption of innocence.
The honorable European Court has also stated that, "it
suffices that there is some reasoning suggesting that the court regards the
accused as guilty"[74] to declare a Government to have violated
the right to be presume innocent. Based
on the latter analysis, the Commission further finds that in the days
immediately following February 15, 1995, the date on which the Supreme Court of
Justice issued an order of attachment of the defendants properties, Justice
Rafael Alfonzo Guzmán said to the media, “that these measures (…) are
ineffective in this particular case because precisely this type of offender and
this type of crime have the effect of ensuring that nobody keeps property of any
significant value in their own name, in order to avoid its attachment.."[75]
The Commission further finds that the attorneys for the defense requested
the recusation of this Justice but the recusation was disallowed by the Supreme
Court of Justice. The Commission
should also mention that these statements were made one year and three months
prior to the conviction issued by Supreme Court of Justice on May 30, 1996,
which, moreover, is signed and initialed by the aforementioned justice.
124. In the
opinion of the Commission, the aforementioned comments invalidate the proceeding
inasmuch as the forenamed justice not only disregards the presumption of
innocence to which the accused is entitled by prejudging him as an “offender"
prior to the conviction, but also acts as judge and party, and injures the honor
and reputation of the alleged guilty party. By the same token, the Commission considers that the
exhibition of persons on trial across the mass media during prime-time viewing
hours, as occurred in the case sub lite,[76]
induces public opinion to prejudge the guilt of those persons and constitutes a
practice at odds with the most basic standards of due process.
All the facts set forth in this chapter permit the Commission to conclude
that the Venezuelan Government bears international responsibility for violation
of Article 8(2) of the Convention, in connection with Article 1(1) of that
international instrument.
125. Right to prior notification in detail of the charges; right of the defense to
examine witnesses; and right of the parties to
proceedings with full equality [article 8(2)(b)(f) of the Cnvention].- According to Article
8(2), clauses (b) and (f) of the American Convention, every person accused of a
criminal offense has the right during the proceedings, with full equality, to prior
notification in detail of the charges against him,
and to "examine witnesses
present in the court and to obtain the appearance, as witnesses, of experts or
other persons who may throw light on the facts."
These are fundamental guarantees of the right to a fair trial, since, as
the European Court of Human Rights has pointed out, "there must exist a
reasonable balance between the public’s interest in punishment and repression
of crime, which is served by the admission of the widest possible range of
incriminating evidence, and the right of the accused or defendant effectively to
disprove that evidence. When incriminating testimony which is submitted as evidence
belongs to anonymous witnesses, or when witnesses refuse to appear at a hearing,
as a result of which the defense is unable to cross-examine facts stated by a
witness, the European Court has found that such conduct violates, to the
detriment of the accused, the provision contained in Article 6, paragraph 3 of
the European Convention on Human Rights.”[77]
126. The record
shows that between March 11, 1993, the date on which the Attorney General of the
Republic filed an indictment and requested a preliminary hearing on merits
before the Supreme Court of Justice, and June 22, 1994, --after the issuance of
the warrant for arrest without probation-- the accused did not have access to a
copy of the prosecutor’s indictment, nor did he have the assistance of an
attorney for his defense at the interrogatories to which he was summoned.
It is also shown that the accused did not have access to the report and
its 12 annexes drawn up against him by the Comptroller General in November 1992,
in spite of repeated requests by the interested party alleging his right of
defense. The record also shows the decision of the Supreme Court of
Justice of May 11, 1993, refusing distribution of copies of the prosecutor’s
complaint and the respective record, as well as the same court’s decision of
May 26, 1993, whereby it orders transmittal to the then-President Carlos Andrés
Pérez of "a complete copy of the indictment and of its accompanying
documents." It is also shown
that on November 16, 1993, the Supreme Court of Justice denied a request to
exclude the Attorney General of the Republic from the trial on the basis of
ensuring a proceeding with full equality for the parties, since the defense did
not have access to the minutes of the preliminary proceedings. That court’s interpretation was that during the preliminary
proceeding the accused was not entitled either to the prosecutor’s indictment,
to the minutes of the preliminary proceedings, to a defense attorney, or to
present witnesses in his defense or cross-examine prosecution witnesses.
The record shows, moreover, that the accused Figueredo Planchart was
questioned in the presence of the Attorney General of the Republic by the
Supreme Court of Justice on September 29, 1993, without the assistance of a
defense attorney and without being able to present evidence in his defense.
127. In the
Commission’s opinion, a criminal suspect must have a real and effective right
to respond to charges and evidence brought by the Office of the Attorney
General. In order for this right to
be effective it must be available to the party concerned at the initial stages
of a proceeding. Failing that,
mistaken or unfair charges brought by the Office of the Attorney General or
false testimony given by witnesses for the prosecution may lead to the mandatory
and prolonged imprisonment of the criminal suspect, without his having had the
opportunity to deny, much less challenge, the incriminating testimony.
The effectiveness of the principle of equality in proceedings is ensured
by according the defense the right to question witnesses and present evidence in
the same conditions as the prosecution. Only
then may the defense fairly submit its case and all the relevant aspects of the
case come to light.
128. The
Commission finds that none of the abovementioned principles of due process were
observed in the case sub lite. Indeed, the limitations imposed on the attorneys defending
the accused, the inability to present evidence in his defense, and the lack of
access to the record of the indictment prior to the issuance of the arrest
warrant, violate the principles enshrined in Article 8(2)(b) and (f) of the
Convention. In the case on record the accused was not granted --during the
preliminary proceeding-- a real opportunity of either knowing or responding to
the charges brought and the evidence adduced by the other party.
During the entire preliminary proceeding, which lasted more than a year,
the Supreme Court of Justice of Venezuela kept secret both the prosecutor’s
indictment and the report of the Comptroller.
By the time the accused’s attorneys were finally able to apprise
themselves of the contents of the aforementioned documents a warrant had already
been issued for his arrest. That
court also violated the right of the accused to a proceeding with full equality,
inasmuch as he was questioned in the presence of the prosecutor while his
defense counsel was excluded. In
consequence, the Venezuelan Government bears international responsibility for
violations of Article 8(2)(b) and (f) of the Convention in connection with
Article 1(1) of the above-cited international instrument.
129. Right to
appeal the judgment to a higher court [Article 8(2)(h) of the Convention].
Article 8(2)(h) of the American Convention provides that Every
person accused of a criminal offense has the right, with full equality, “to
appeal the judgment to a higher court .”
This right constitutes a fundamental requirement of due process and,
furthermore, in accordance with Article 27(2) of the Convention, may not be
derogated. In the opinion of the
Commission, the right to appeal a judgment entails a review of the facts of the
case, a complete study of the trial, which implies real guarantees to the
accused persons that their case will be heard and respect for their rights
ensured, in conformity with the principles of due process provided in Article 8
of the Convention. This right does
not provide exceptions of any nature. In
other words, a Government cannot plead its domestic law in order to avoid
compliance with this provision.[78]
The Inter-American Court defines this concept in one of its more recent
decisions:
The right to appeal the judgment enshrined by the Convention is not
satisfied by the mere existence of an organ of superior instance to the one that
tried and convicted the accused, to which the latter has, or may have, access.
In order for there to be a real review of the judgment, in the sense
required by the Convention, the superior court must satisfy the jurisdictional
characteristics that enable it legitimately to take cognizance of the concrete
case.[79]
130. The
Commission has already said in the instant report that the Supreme Court of
Justice was not the competent tribunal to try and convict Reinaldo Figueredo
Planchart in a single-court proceeding.[80]
Under Venezuelan positive law, the Superior Tribunal for the Protection
of Public Assets was the competent organ to try the accused in its capacity as
the court of first instance, which would have enabled him to appeal to a
superior tribunal should the judgment have been unfavorable.
In the event, that did not occur, given that the Supreme Court convicted
him on May 30, 1996. In relation
thereto, the Inter-American Court has also stated that "the criminal trial
is a single continuous proceeding that passes through various stages, including
that which corresponds to the first instance and those pertaining to subsequent
instances. In consequence, the
concept of natural judge and the principle of due process of law are in effect
throughout all these stages and extend to the different jurisdictional levels of
the trial. If the judge (...) does
not satisfy the characteristics of a natural judge, the stage of the trial
developed before him cannot be regarded as legitimate and valid."[81]
131. The foregoing
coupled with the fact that Article 211 of the Constitution of the State of
Venezuela provides that, "[t]he Supreme Court of Justice is the highest
bench in the Republic. No appeals
whatsoever shall be heard or admitted against its decisions," and analyzed
in conjunction with the note from the Venezuelan Government of February 6, 1997,
in which it states, inter alia, that
"there
are no other remedies of internal jurisdiction to be interposed"
against the conviction handed down by that tribunal,
permits the Commission to conclude that the Venezuelan Government also breached
Article 8(2)(h) of the Convention, in connection with Article 1(1) of the
above-cited international instrument.
132. Right to a
public proceeding [Article 8(5) of the Convention].- Article 8(5) of the
Convention provides that, "Criminal proceedings shall be public, except insofar as may be necessary
to protect the interests of justice."
The Inter-American Commission has stated in that regard that:
Having
public trials is not only an essential guarantee of due process, but also a
general principle of law. Having public proceedings is a "fundamental
principle of modern procedure, opposed to inquisitorial secrecy, which
establishes, as a supreme guarantee for the litigants, for the finding of the
truth, and for fair judgments, that the investigation of the cases...be known
not only to the parties and those who intervene in proceedings, but to everyone
in general.[82]
133. The case law
of the European Court of Human Rights is also consistent on this point:
The public nature of proceedings
protects litigants from the secret administration of justice not checked by
public opinion; it is also one of the measures for preserving confidence before
the courts and tribunals, by securing transparent administration of justice.
Public procedure helps ensure the aim of the right to a fair trial, whose
guarantee is one of the fundamental pillars of any democratic society.[83]
134. The
Commission observes that at the time of the events, an ordinary criminal
proceeding could be initiated ex officio, by petition, or by accusation;
however, the initial inquiry, once opened, was secret and of indefinite duration
in cases where there was no detainee.[84]
In the case sub lite it is amply shown that from the start of the investigations
in November 1992, until June 22, 1994, --following the issuance of the arrest
warrant-- the accused did not have access to the record containing the charges
brought either by the Comptroller General or the prosecutor.
As a result of the secrecy of the first stage of the proceeding –let us
call it the first stage in spite of the almost two years that elapsed-- the
accused did not have access to the proceeding and, therefore, could not help to
shed light on the facts. Indeed,
the fact that Venezuelan criminal law at the time provided for the secrecy of
investigations in preliminary proceedings, not only made it impossible for the
interested party to know the truth of what occurred in the investigation, but
also forbade his cooperation therewith or participation therein.
The interest of the accused in seeing justice done in his case can
contribute depth to the investigation and to clarification of the facts.
Thus, at this crucial stage of the investigation, when the memory of the
witnesses is fresh and when it is still possible for experts to perform tests or
to carry out judicial inspections that make it possible to gather evidence in
defense of the accused, the lack of access to the proceeding instituted by the
State has contributed to a lack of transparency in the proceedings in this case.
135. It is
pertinent to mention in this context that the Venezuelan Government has
corrected this situation by promulgating the new Organic Code of Criminal
Procedure, which entered into force on July 1, 1999.
Under this new code, the Office of the Attorney General has sole control
over investigations in crimes against public order, thereby eliminating secret
preliminary proceedings. The
purposes article of the new Code of Criminal Procedure criticizes secrecy
of preliminary proceedings as follows:
... examination of the legal framework (legality) and effectiveness
(reality) of the body of laws on criminal procedure reveals that it violates
basic procedural principles (...). The
Venezuelan criminal trial, with its mixed origins, was gradually corrupted (from
a system of judicial investigation to one of police investigation and the
possibility of admitting as evidence information obtained in the preliminary
proceeding), to the extent where it became an almost purely inquisitorial
proceeding. The preliminary
proceeding, which was a phase preparatory to the trial proper, became the
principle phase, where the police prepare the file of the case, detain the
"alleged" author of the crime and, furthermore, in violation of
express legal provisions, publicly censure him through the mass media; and the
trial proper, bereft of any substantial content, became a meaningless ritual:
today, the criminal trial ends, materially speaking, with the issuance of the
warrant of arrest.
This situation considered, the need arises to update Venezuelan
procedural law and to replace a system of legal procedure, which is said to be
"mixed" but is fundamentally inquisitorial (a system characteristic of
absolutist states), with one in which the parties have equal status and the
judge acts as a disinterested third party.
......
Starting with the area of criminal justice, the aim is to provide the
citizenry in each case with a concrete response –on a fixed date-- of justice
dispensed swiftly and with a sense of equity.
......
The accuser and the accused, appear before the judge with equal rights
and obligations, and the case is, generally speaking, judged with the accused at
liberty until judgment is pronounced.
......
Given that criminal matters are too important to be addressed secretly,
all proceedings, except as provided otherwise by law, must be conducted
publicly, inasmuch as this constitutes a guarantee of the legality and fairness
of the decision, permits the ordinary citizen to become more familiar with the
system of justice administration, and reinforces his faith in it, which, in
turn, represents a form of democratic control over legal proceedings. Thus, in protecting the parties from a system of justice
removed from public control, one of the principles of due process is guaranteed.[85]
136. The
Inter-American Commission regards as positive the fact that the Venezuelan
Government has corrected legal provisions that were incompatible with the
purpose and aims of the American Convention.
However, irrespective of the fact that that legislation has been amended
in order to make it compatible with the obligations adopted by the Government in
the framework of the above-cited instrument, the fact remains that the
application of the old Code of Criminal Trial Procedure in the instant case had
negative repercussions on the procedural rights of the victim, whose right to
the guarantees of due process of law and, by that token, to a fair trial, was
violated. Accordingly, the
Venezuelan Government also bears international responsibility for violation of
Article 8(5) of the Convention in connection with Article 1(1) of the
above-cited instrument.
137. Right to
an impartial tribunal [Article 8(1) of the Convention].
Article 8(1) of the Convention provides that every person has the right
to a hearing by an impartial tribunal. The
scope of the term “independent” has been analyzed, developed and applied by
international jurisprudence on human rights.
The European Court of Human Rights, for instance, has developed abundant
and coherent case law on this subject.[86]
Analysis of that practice permits one to surmise that certain structural
and functional conditions must be satisfied, in order to determine a tribunal to
be independent.
138. Impartiality
supposes that the judge or tribunal does not have any preconceptions on the case
sub lite and, in particular, that he or it does not assume the
accused to be guilty. For the
European Court of Human Rights the impartiality of the judge is composed of
subjective and objective elements. The
subjective impartiality of the judge is assumed in a given case until proved
otherwise. His objective
impartiality, for its part, requires that the court offer guarantees sufficient to exclude
any legitimate doubt in respect of its impartiality in the proceeding.[87]
The European Court further adds that, "even appearances may be of a
certain importance. What is at stake is the confidence which the courts in a democratic
society must inspire in the public and above all, as far as criminal proceedings
are concerned, in the accused.
What is decisive is whether this fear can be regarded as
objectively justified.”[88]
In sum, the aforesaid court concluded that, "justice
must not only be done; it must also be seen to be done.”[89]
139. Bearing these
principles in mind, the Commission finds that the different stages of the
proceedings in this case have been plagued by numerous irregularities that raise
serious doubts about the independence and impartiality of the government organs
tasked with trying the case of Reinaldo Figueredo Planchart.
Following, the Commission lists and examines the irregularities
committed:
a.- El
Nacional newspaper of March 16, 1993, --pages A-1 and D-1-- reports on the
investigations of Reinaldo Figueredo Planchart (hereinafter "RFP")
carried out by the Office of the Comptroller General of the Republic.
It should be borne in mind that this government organ, on March 17, 1993,
refused RFP a copy of the report with 12 annexes that it had drawn up.
It should also be borne in mind that on the day after this press article,
that is March 17, 1993, the Supreme Court of Justice admitted the criminal
indictment filed by the Attorney General of the Republic against RFP.
b.- El
Nacional newspaper of May 5, 1993 --page D-1-- and El Universal newspaper of May 6, 1993, published the proposed
judgment of the Supreme Court of Justice citing the grounds for prosecuting RFP.
It should be mentioned that RFP still did not have access to the record
or the right to defense counsel and that on May 11, 1993, the Supreme Court
denied access to a copy of the prosecutor’s indictment on the basis that that
is applicable only "when it has been declared beforehand that there are
grounds for prosecution.” It is
also important to note that 15 days after this news was published by the press,
that is, May 20, 1993, the Supreme Court declared that there were grounds for
the prosecution of RFP.
c.- El
Universal newspaper of April 15 and 30, 1994 published part of the text that
contains the warrant for the arrest of RFP. It should be mentioned that RFP only had access to the record
and, therefore, the right to be assisted by an attorney in his defense in the
interrogatories, from June 22, 1994. It
is important to underscore, furthermore, that the attorneys of RFP filed a
petition with the Supreme Court of Justice denouncing the leak. The Supreme
Court issued a warrant for the arrest of RFP on May 18, 1994, three weeks after
the aforesaid leak.
d.- On February 16, 1995,
Supreme Court Justice Rafael Alfonzo Guzmán gave statements to El
Universal –page 21--, making value judgments on the accused in this case
and labeling them as “offenders.”[90]
These same statements appeared on Friday, February 17, 1995, on the 8:00
p.m. news program broadcast by Channel 10, which is owned by TELEVEN.
The attorneys for RFP filed a request for recusation of said justice.
However, the recusation was disallowed. It should be mentioned that this same
justice was subsequently elected President of the Supreme Court, and that at the
time of making his statements a conviction had not yet been issued.
e.- El
Nacional newspaper of January 25, 1996, published an interview with the
then-President of the Republic Rafael Caldera in which he considered that to
grant a pardon the accused persons would be a failure to recognize “the
conviction that it behooves the Supreme Court of Justice to hand down.”
The Supreme Court had yet to pass judgment on the case.
f.- El
Nacional newspaper of February 1, 1996, published statements made by the
then-Prosecutor General of the Republic, Jesús Petit Da Costa, in which he
regards the lodging of a petition with the IACHR as a method used by the accused
to exert pressure on the Government.
g.- El
Nacional newspaper of April 19, 1996, transcribed extracts from the proposed
judgment convicting RFP. Two weeks
later, on May 30, 1996, the Supreme Court of Justice issued its final judgment
on the case, sentencing RFP to two years and four months imprisonment.
It should be mentioned that the text of the judgment matched that
published in the press.
140. In the
opinion of the Commission, the leaks to the press by the organs in charge of
administration of justice in Venezuela before the accused could exercise his
right of defense gravely corrupt the proceeding and cast serious doubt on the
impartiality of the judicial authorities. These
facts, coupled with the statements made by a number of justices in which they
prejudge or advance judgment, and refer to the accused as an offender prior to
his conviction, demonstrate the bias of that judicial body toward one of the
parties in the proceeding --in this case the Government-- and disqualifies it as
an independent and impartial tribunal in accordance with the principles
set forth by the American Convention.
141. At this stage
of its analysis, the Commission cannot omit to reproduce part of the dissenting
opinion of Supreme Court Justice Hildegard Rondón de Sansó, who, in
disagreeing with the majority decision to convict Reinaldo Figueredo Planchart,
stated, inter alia, that:
Finally, the dissenter cannot neglect to mention the
notion of the proceeding outside the proceeding, which has been a determining factor in this trial, where
everything, even the final decision, was debated in the press prior to
publication.
In this external proceeding,
the manipulation of public opinion sought above all to increase the charges
against the accused (...) in order to condition that opinion to demand decisions
on acts alien to the trial. The
layman dos not know that the judge decides "secundum
allegata et probata", and that the only charges on which he
pronounces judgment are those that were presented and appear in the record.
Unaware of this fact, while being informed of other charges being
constantly reported on outside the proceeding, public opinion is manipulated to
react, in the event of an acquittal, both against the accused and against the
judge.
If one takes account of all the legal considerations and those relating
to the factual evidence that surrounded the formation of this decision, and one
recalls the pressure that the Head of Government himself exerted on the
substance thereof, in demanding a conviction by the Supreme Court, one can only
say that the Supreme Court of Justice has again squandered an opportunity to
elevate its standing in the eyes of the country and of the international legal
community by delivering a judgment in accordance to law and justice.[91]
142. Justice
Alfredo Ducharne Alonzo also referred to the aforesaid judgment, indicating
that, "A decision has been made --in the view of the dissenting Justice--
under the distorting external influences of public opinion and the political
ingredient."[92]
143. The European
Commission of Human Rights has stated that "the Government has the
obligation to ensure that everyone subject to its jurisdiction and accused of a
crime has a fair trial and not what is sometimes termed a trial
by the press.”[93] That
Commission also declared that "a virulent press campaign can adversely
affect the fairness of the proceeding and entail the responsibility of the
Government, particularly when it is encouraged by one of the organs of the
Government itself.”[94]
144. Like the
European Commission, the Inter-American Commission considers that biased
publicity highlights even more starkly the absence of transparency and lack of
procedural equality in the case sub lite,
since the administrative authority, the prosecutor, the judges, and even the
written and televised press had access to the record, while the interested
party, who was harmed by his failure to receive a fair trial, did not.
Furthermore, these indications, taken in conjunction, are more than sufficient
for it legitimately to appear that the government organs entrusted with
substantiating the accusation made against Reinaldo Figueredo Planchart lacked
impartiality. Accordingly, Venezuela, as a state party to the Convention,
failed to fulfill it positive duty to ensure for the accused the guarantees of
due process of law to which he was entitled.
Therefore, it violated Article 8(1) of the above-cited international
instrument.
145. As the
Inter-American Court has found,
...it is beyond any question of doubt that the State has the right and
duty to guarantee its own security. Nor
can it be disputed that the whole of society suffers as a result of
infringements on its legal order. Nevertheless,
however grave certain acts may be, and as guilty as certain offenders may prove,
it is inadmissible for power to be wielded without restraint or for the
Government to avail itself of any procedure for accomplishing its aims without
abiding by the law or morals. There
is wide recognition of the primacy of human rights, which the State cannot
ignore without violating.[95]
146. The
Commission holds that the Government, in subjecting the victim in the instant
case to proceedings in which the principles and guarantees of due process
enshrined in the American Convention were not respected, has breached its
obligation to respect the rights and freedoms recognized therein and to
guarantee free
and full exercise of those rights and freedoms, as
Article 1(1) of the Convention provides.
IV.
RIGHT TO HUMANE TREATMENT [ARTICLE 5 OF THE CONVENTION]
147. In their
original communication of May 23, 1994, the petitioners asserted that the
Venezuelan Government violated Articles 5(1), (2), and (4) of the American
Convention to the detriment of Reinaldo Figueredo Planchart.
The precise wording of those articles is as follows: Article 5.
Right to Humane Treatment
1. Every person has the right to
have his physical, mental, and moral integrity respected. 2.
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All
persons deprived of their liberty shall be treated with respect for the inherent
dignity of the human person. 4.
Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons, and shall be subject to separate treatment appropriate
to their status as unconvicted persons.
148. The
Commission observes that the petitioner requested the censure of the Government
on the basis that he was hypothetically served with the warrant issued for his
arrest. Indeed, the petitioner
stated, inter alia, "As is public
knowledge, not only are conditions unbelievably unsanitary and overcrowded in
detention centers for remand prisoners in Venezuela, known as holding centers (retenes)
or judicial internment centers, they are also effectively under the command of
the most violent habitual criminals and totally beyond the control of the
authorities. (...) It was
determined that the accused in this trial were to be sent to one of these
judicial internment centers. The
only exception being the accused persons over 70 years of age (...). This is not the case with Figueredo Planchart, although it is
with the other two accused persons mentioned.”[96]
149. Given that
Reinaldo Figueredo Planchart left the country on May 18, 1994, before he could
be served with the warrant for his arrest, and that the hypothesis to which he
alluded in his original petition did not materialize because his trial continued
in absentia, the Commission concludes that the Venezuelan Government is not
responsible for violation of the accused’s right to humane treatment, and so
it finds. V.
PROCEEDINGS SUBSEQUENT TO REPORT Nº 85/99
150. On September
29, 1999, the Commission adopted Report Nº 85/99 under Article 50 of the
American Convention. In that
report, the Commission concluded that the Venezuelan Government had violated
Reinaldo Figueredo Planchart’s right to the judicial guarantees contained in
Articles 8(1), 8(2)b, (d), (f), (h), and 8(5) of the American Convention, as
well as his right to judicial protection enshrined in Article 25(1) of the
above-cited international instrument. All
the foregoing was on the basis of the lack of due process in his trial in
Caracas, Venezuela, from November 1992 until May 1996, when the Supreme Court of
Justice sentenced him to two years and four months imprisonment.
The Commission further concluded that the Venezuelan Government failed to
fulfill its obligation to respect and guarantee these rights contained in the
Convention, or to adopt the measures necessary to avert these violations in
pursuance to Article 1(1) of the aforementioned treaty. Lastly, the Commission
concluded that the Government had not violated the victim’s right to humane
treatment recognized in Article 5 of the Convention.
151. Based on the
analysis and conclusions contained in that report, the Commission recommended
that the Government "(1) Vacate the proceedings instituted against Reinaldo
Figueredo Planchart both before the Office of the Comptroller General of the
Republic and before the Supreme Court of Justice, and grant him a new trial
before an ordinary court of first instance with full observance of the
guarantees of due process; (2) Rescind the warrants outstanding for the arrest
of Reinaldo Figueredo Planchart under Venezuelan domestic jurisdiction; and (3)
Adopt the necessary measures to provide adequate and timely compensation to
Reinaldo Figueredo Planchart, including just satisfaction for the human rights
violations established herein.”
152. The
Commission transmitted the report to the Government on October 13, 1999,
granting it a period of two months to comply with the foregoing recommendations.
On December 3, 1999, the Government requested an extension of 60 days
"to examine the preliminary report on the case in question.”
The Government further stated that, "such a petition stems from the
request by Sr. Figueredo’s lawyer, Douglas Cassel, to hold a meeting with
Foreign Minister José Vicente Rangel, in order to study the possibility of
reaching a friendly settlement.”
153. In its note
of December 8, 1999, the Commission acknowledged receipt of the Government’s
communication and further mentioned that, "based on the fact that the
three-month period provided for in Article 51(1) of the Convention expires on
January 13, 2000, I wish to inform Your Excellency that the Commission will be
pleased to consider an extension on the proviso that the Government indicate
it’s agreement that that request suspend the deadline for the Commission to
adopt the decision to refer this case to the Inter-American Court of Human
Rights under the terms of Article 51(1) of the Convention.”
154. In a note
dated December 8, 1999, the Government accepted the Commission’s conditions
and the latter in a communication of the same date informed the Government that,
"the two additional months granted to the Government will conclude on
February 13, 2000, and the deadline established in Article 51(1) of the
Convention for referring this case to the Court will expire on March 13,
2000.”
155. On February
8, 2000, the petitioner informed the Commission that, "in spite of the
efforts made following the adoption of the Commission’s report under Article
50 on this case, the parties have been unable thus far to reach a friendly
settlement, nor is there any likelihood thereof given the current status of the
discussions. Accordingly, although Mr. Figueredo remains willing in good
faith to negotiate a fair and reasonable settlement in this case, I have no
option but to request the Commission to refer the case to the Inter-American
Court of Human Rights.”
156. The
additional period granted by the Commission to the Government expired on
February 13, 2000, without the latter complying with its recommendations or
making any observations to Report Nº 85/99.
Consequently, following, the Commission reiterates its conclusions and
recommendations to the Government of Venezuela. VI.
CONCLUSIONS
157. The
Government of Venezuela is responsible for violation of the following rights
protected in the American Convention on Human Rights: the right to a fair trial
(Article 8(1), 8(2)(b), (d), (f), (h), and 8(5)) and the right to judicial
protection (Article 25(1)), as a result of the events that occurred in Caracas,
Venezuela, starting in November 1992, the month in which an administrative
proceeding was instituted ex officio against Reinaldo Figueredo Planchart and
ending with the conviction delivered by the Supreme Court of Justice on May 30,
1996, without respect having been shown for the guarantees of due process to
which the accused was entitled.
158. The
Government of Venezuela has failed to fulfill its obligations to respect human
rights and guarantees imposed by Article 1(1) of the American Convention, to
which Venezuela became a state party on August 9, 1977.
159. The
Government of Venezuela is not responsible for violation of the right of
Reinaldo Figueredo Planchart to humane treatment --Article 5(1), (2), and (4) of
the American Convention. VII.
RECOMMENDATIONS
Based on the analysis and conclusions contained in the instant report, THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE
VENEZUELAN GOVERNMENT:
2. To
rescind the warrants outstanding for the arrest of Reinaldo Figueredo Planchart
under Venezuelan domestic jurisdiction.
3. To
adopt the necessary measures to provide adequate and timely compensation to
Reinaldo Figueredo Planchart, including just satisfaction for the human rights
violations established herein VIII.
PUBLICATION 160.
On March 7, 2000, the Commission sent the State Report
Nº 20/00, which it had adopted in accordance with Article 51 of the Convention
during its 106th regular session.
The Commission gave the State a month in which to solve the situation
that had been denounced. That
report was also sent on the same date to the petitioner, who was advised that it
was confidential until such time as the Commission should decide to publish it. 161. In a note to the Commission dated April 3, 2000, the petitioner
acknowledged receipt of Report Nº 20/00 and requested inter alia that “the
Commission publish the report on the instant case and include it in its next
Annual Report. The State has failed
to comply with any of the Commission’s recommendations, despite having
received them six months ago, in October 1999, and despite the petitioner’s
efforts to reach a friendly settlement of the matter. Neither the flawed
administrative and judicial proceedings have been vacated, as the Commission had
recommended, nor is there any likelihood that this will happen; the arrest
warrants pending have not been revoked; and no reparation has been made to Mr.
Figueredo, nor are there any signs that this will happen. Given this failure of
the State to comply with the Commission’s recommendations, publication of the
report on this case in the Annual Report would constitute a measure of moral
reparation granted by the Commission, above all because the violations of his
human rights have done grave harm to Mr. Figueredo’s good name. It is important that this report be published as soon as
possible, in the 1999 Annual report, because six years have passed since the
petition was filed with the Commission in May 1994. Moreover, the report contains valuable jurisprudence on the
subject of due process in criminal proceedings. Publishing it could therefore make a positive contribution to
reforms of criminal proceedings under way in many countries in the
Hemisphere.”
162. The State
neither replied to the report of the Commission nor followed its
recommendations.
163.
Accordingly and pursuant to the foregoing considerations, and in
conformity with Article 51(3) of the American Convention and Article 48 of its
Regulations, the Commission decides to reiterate the precedent conclusions and
recommendations , and to make this Report public, and to include it in its
Annual Report to the General Assembly of the Organization of American States.
The Commission, pursuant to its mandate, shall continue evaluating the
measures taken by the Venezuelan State with respect to the recommendations at
issue, until they have been fully fulfilled. Done and signed by the Inter-American Commission on Human Rights, on the 13 day of the month of April 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-hairman; Juan Méndez, Second Vice-Chairman; Commissioners Marta Altolaguirre, Peter Laurie, and Julio Prado Vallejo.
[1] Commission Member,
Robert K. Goldman, refrained from participating
in the discussion and vote on the instant report.
[2] Venezuela ratified the American
Convention on Human Rights on August 9, 1977.
[3] Venezuela acceded to the
contentious jurisdiction of the Inter-American Court of Human Rights on June
24, 1981.
[4] IACHR, Report Nº 39/96, Case
11.673, Santiago Marzioni vs.
Argentina, October 15, 1996, p. 93, paras. 60 and 61, in 1996 Annual
Report, OEA/Ser.L/V/II.95, Doc. 7 rev, March 14, 1997.
[5] See IACHR, Report Nº 43/96, Case
11.430, (Mexico), October 15, 1996, p.585, in 1996 Annual Report,
OEA/Ser.L/V/II.95, Doc. 7 rev., March 14, 1997.
[6] See case law of the European
Court of Human Rights: Barberá, Messegue and Jabardo Case, Judgment of 6
December 1988, Series A, Nº 146, para. 83; Asch Case, para. 26; and Delta
Case, para. 35.
[7] The communication from the
Comptroller General of the Republic of May 17, 1993 stated inter alia, "In reply I inform you that on November 10, 1992,
this agency opened ex officio an investigation into the use and disposal of
the sum of two hundred and fifty million bolivars (Bs. 250.000.000.00),
charged to the item ” Budget Rectification” of 1989 and allocated to the
Interior Ministry to cover Government defense and security expenditures, in
accordance with Resolution Nº 87 of the Central Budget Office, published in
Official Gazette Nº 34.166 of February 24, 1989.
The aforesaid investigation was carried out in pursuance to Articles
234 of the Constitution, 1 of the Organic Law of the Office of the
Comptroller General of the Republic, and 25 and 30 of the Organic
Law on
Protection of Public Assets, which
conferred upon this agency wide powers of investigation and oversight on all
acts in connection with public assets.
In the present case, the Office of the Comptroller General of the
Republic did not conduct an administrative inquiry, in conformity with the
procedure provided in and governed by Chapter III, Title VI of its Organic
Law, but, rather, an essentially documentary investigation, for which no
citizen (public official or private individual) was required to appear or
give testimony, but which collected information from bodies and entities
that had been involved in the use and disposal of those public resources.
That investigation culminated in a report dated November 26, 1992,
plus 11 annexes thereto, which were conveyed to the Superior Tribunal for
the Protection of Public Assets in
response to that tribunal’s request, inasmuch as it had opened an
investigation into the same matter, and to the Attorney General of the
Republic in view of the circumstantial evidence that emerged from that
investigation. From the
foregoing, I consider that I have furnished you with all the information
that I am legally able to provide to you, inasmuch as, by Official Letter Nº
92-2733 dated December 1, 1992, the Superior Tribunal for the Protection of
Public Assets notified this Office of the
Comptroller General, that the report of November 26, 1992 and its annexes,
have become bound up in a preliminary criminal proceeding and that,
accordingly, their contents must be kept in the utmost secrecy. Sincerely,
José Ramón Medina, Comptroller General of the Republic.
[8] The pertinent portions of the
communication from Reinaldo Figueredo Planchart mention, inter alia, the following: "In Chapter III, Title VI of the
Organic Law of the Office of the Comptroller General of the Republic (On
Administrative Inquiries), Articles 81 to 92 set out the procedure to be
followed in the above-cited inquiries of an administrative nature, Articles
81 to 83 immediately hereinabove stating that "the Office of the
Comptroller General may carry out investigations, in all cases where there
emerges circumstantial evidence that public officials or private
individuals... have engaged in acts, events, or omissions contrary to a
legal provision or regulation..." (Article 81), to which end a
“non-contentious proceeding shall be instituted, which would end in a
decision of acquittal, dismissal or responsibility for administrative
wrongdoing..." (Article 82), and where that agency, "having opened
the inquiry, shall gather testimonies, expert opinions, reports and any
other evidence it deems necessary to clarify the facts of the matter.
If,
in the course of that activity, circumstantial evidence were to emerge
incriminating a person, the Office of the Comptroller General shall summon
him, in order to testify within ten (10) calendar days from the date of the
summons, on which occasion it shall take his testimony and inform him of the
charges against him..." (Article 83).
The Organic
Law on Protection of Public Assets
is in accordance with the foregoing provisions, inasmuch as Articles 25, 26
and 30 thereof provide that the Office of the Comptroller General of the
Republic has competence to investigate in all proceedings connected with
public assets, and shall order the opening of the respective inquiry for
carrying out such acts as may be necessary acts to substantiate criminal or
civil responsibility. The
foregoing clearly shows that these investigations which the Comptroller’s
Office is empowered to carry out must be conducted in the procedural
framework of an administrative inquiry and must observe all the formalities
provided for in the law in question, the spirit, purpose and reason of this
provision being clearly to establish responsibility for administrative acts
and evidence to support possible charges of a civil or criminal nature.
Failure to abide by the aforesaid procedure would render it void and,
therefore, violate the right of defense set forth in Article 68 of the
Constitution, in accordance with Article 83 of the Organic Law Organic Law
of the Office of the Comptroller General of the Republic.
It should be noted that the fact that the aforementioned procedure
was not observed carries with it the procedural consequence that that
investigation lacks the evidentiary value ascribed to it by Article 57 of
the Organic Law on Public Assets; I wish to inform you that I will submit as
much in my defense before the Supreme Court of Justice."
[9] Article 68 of the Venezuelan
Constitution provides, inter alia,
that "the right of defense is inalienable at every stage and level of a
proceeding."
[10] Supreme Court of Justice,
Judgment of May 30, 1996, p.716, ff. 232-241.
[11] Article 144 of the Constitution provides that
"Any court that takes cognizance of charges or complaints made against
a member of the Congress, shall carry out the necessary preliminary
proceedings and refer them to the Supreme Court of Justice for the purposes
set out in Article 215, Clause 2 of this Constitution. If the court finds that there are grounds to proceed with the
cause, no trial may take place until the criminal suspect is stripped of his
immunity by the respective Chamber or by the Delegated Committee.”
For its part, Article 165 of the Code of Criminal Trial
Procedure in force for the events that comprise the subject matter of the
instant case, states that "all Venezuelans and foreigners who are not
legally prevented from doing so are under obligation to appear in response
to any summons that may be issued in any matter of a criminal nature, in
order to declare what they know in answer to any questions put in respect
thereof by the official in charge of the preliminary proceeding or by the
court trying the case.” Articles
166 and 168 of the same law provide that “exemption from appearing in
response to the summons in the foregoing Article, but not from giving
testimony, is granted to.... members of the Nation’s Congress;
furthermore, those persons covered in Article 60, clause 4 of the
Constitution are not required to give testimony in the cases determined
thereby.” Article 60 (4) of
the Venezuelan Constitution recognizes that “no person may be obligated to
take an oath or be compelled to be a witness against himself or to plead
guilty in a criminal proceeding against him..."
[12] The decision of the Supreme Court
of Justice denying one of the co-accused a copy of the indictment of the
Attorney General of the Republic consisted, inter
alia, of the following: "The Court, in reaching its decision, finds
that: Having reviewed the points of view applied thus far with respect to
whether, in the special procedure of the Preliminary Hearing on Merits
provided for in Article 361 et seq.
of the Code of Criminal Trial Procedure and Article 146 et seq. of the Organic Law of the Supreme Court of Justice, it is in
accordance with the law to provide the accused with a "a complete copy of the complaint and of the documents that
accompany it," and with respect to the timeliness of doing so, that
there are various precedents with different solutions.
The Court considers that the best criterion is that which holds that
the provision contained in Article 369 of the Code of Criminal Trial
Procedure is only applicable when it has been previously declared that there
are grounds for prosecution, in other words, that the above constitutes
subject matter pertaining to the trial and not to the preliminary
hearing."
[13] The record before the Commission
contains the summary of the debates held in the Chamber of Deputies of the
Congress of the Republic of Venezuela on May 27, 1992. During those
proceedings the then-Deputy Reinaldo Figueredo Planchart addressed the
parliament saying, inter alia, the
following: "Mr. Speaker, Fellow Deputies, the Supreme Court of Justice
has announced that there are grounds for my prosecution based on the
complaint brought against me by the Attorney General of the Republic in
connection with the case of the 250 million bolivars of the so-called secret
entry of the Interior Ministry. Given
that Article 144 of the Constitution provides that, quote, "... no
trial may take place of any member of Congress until the criminal suspect is
stripped of his immunity by the respective Chamber...", unquote, I come
on this -for me- disagreeable occasion, to support the opinion of the
Special Committee chaired by Deputy Gustavo Tarre Briceño and to ask you to
vote for removal of immunity, as I myself will do. (...) The Supreme Court
of Justice has decided that there are grounds for my prosecution.
I have yet to receive any notice of that decision, of which I have
learned through the media. (...) I also found out through the media that the
Superior Tribunal for Protection of Public Assets had opened an
investigation (...) I came forward of my own accord, in order to collaborate
and to give information to that tribunal.
To my surprise I was deposed as a criminal suspect, in spite of the
fact that Articles 143 and 144 of the Constitution contain express
provisions relating to immunity. Once
again through the media I heard that the Supreme Court of Justice had
instituted a preliminary hearing on the merits of the charges brought
against me in an indictment filed by the Attorney General of the Republic.
I was not informed of the hearing, nor was I permitted to know the
contents of the indictment, despite the fact that Article 8 of the American
Convention on Human Rights, which has been ratified by Venezuela and is a
Law applicable to the Republic and the Hemisphere, provides "…
the right to a hearing, with due guarantees and within a reasonable time, by
a competent, independent, and impartial tribunal..."
Once more the media were the source of information that enabled me to
know that the Office of the Comptroller General of the Republic had opened
an inquiry into the events in which I appeared to be involved, and had
issued a report, without ever having notified me or permitted me to defend
myself, in spite of the provisions contained in the Organic Law of the
Office of the Comptroller General of the Republic... (...) In my opinion it
is inadmissible for a person indicted before the Supreme Court of Justice to
be prevented from knowing the details of the proceeding instituted by the
Attorney General of the Republic....(....) I do not accept the submission of
the Office of the Comptroller General of the Republic that a report that it
has drawn up against me as a criminal suspect indicted before the Supreme
Court of Justice is covered by the secrecy of the preliminary proceeding, or
that I should be here before you today in order to be stripped of my
immunity on the false pretext that this report is secret and that I will
only have access to it in my forthcoming trial! (...) However, now that a
proceeding is about to be instituted before the highest Bench of the
Republic, composed of the country’s most renowned jurists, I trust that
equanimity and good judgment will prevail.
I am confident that this proceeding which has caught the attention
not only of Venezuelan public opinion, but also of the legal opinion of the
Hemisphere and the world, will provide cause for praising our country’s
justice system for its strict abidance by the rules of due process and its
scrupulous respect for the right of defense, as provided for in our laws and
enshrined in universally recognized standards for the protection of human
rights. Should that be the
case, I feel utterly sure that my reputation and good name, upon which doubt
has been so unjustly cast, will remain free of any blemish. Mr. Speaker, in order to attempt this goal, and in keeping
with what Deputy Gustavo Tarre Briceño has said, I ask that you vote in
favor of lifting my parliamentary immunity."
[14] In its judgment on merits (pages
4 and 5) of May 30, 1996, the Supreme Court of Justice cited Article 215(1)
of the Constitution which, to the letter, states the following: The Supreme
Court of Justice has the power: 1.- To declare whether or not there are
grounds to try the President of the Republic, or whomsoever acts in his
stead, and, in the event of the affirmative, to continue, subject to
authorization from the Senate, to hear the case and to render final judgment
thereon."
[15] Political and Administrative
Chamber, Supreme Court of Justice, Decision of August 11, 1994.
[16] Article 60(1), second paragraph
of the Constitution of Venezuela: The
criminal suspect shall have access to the minutes of the preliminary
proceeding and every means of defense that the law provides as soon as the
respective arrest warrant is executed.
[17] Supreme Court of Justice,
Proposed Report of Justice Ismael Rodríguez Salazar, pp. 7 and 8, Section
22, ff. 175-76), November 16, 1993.
[18] Supreme Court of Justice, May 30,
1996, p. 5, ff. 2 to 533, section twenty-four.
[19] Decision of the Trial Court of
the Supreme Court of Justice, Case Nº 0588, f. 64, Caracas, June 9, 1994
[20] Trial Court of the Supreme Court
of Justice, Case Nº 0588, Caracas, June 22, 1994.
[21] El
Universal, Caracas,
February 16, 1995, p. 21.
[22] El
Nacional, Caracas,
January 25, 1996, Section D, p. 1.
[23] El
Nacional, Caracas,
February 1, 1996.
[24] El
Nacional, Caracas,
April 19, 1996, p. 1.
[25] Supreme Court of Justice,
Judgment of May 30, 1996, p. 767, Caracas, Venezuela.
[26] Inter-Am.Ct.H.R.,
Advisory Opinion OC-9/87 of October 6, 1987, Judicial Guarantees in
States of Emergency (Series A), Nº 9,
para. 27, p.15.
[27] European Court of Human Rights, Delcourt
v. Belgium, 1 E.H.H.R. 335, Judgment of 17 January 1970, para. 25, p.15.
The Court held to the same interpretation in the Judgment of 26
October 1984, De Cubber, A.86
(1984), para. 16.
[28] The Inter-American Court has
declared that, "In a democratic society, the
rights and freedoms inherent in the human person, the guarantees applicable
to them and the rule of law form a triad. Each component thereof defines
itself, complements and depends on the others for its meaning."
Inter-Am.Ct.H.R.,
Advisory Opinion OC-9/87,
op.cit., para. 35.
[29] European Commission of Human
Rights, Joseph Kaplan v. United
Kingdom, Application 7598/76, 1981, ECC 297, 1982, 4 EHRR 64 - 17 July
1980. In this case the
petitioner complained that a decision had been made in respect of certain
rights and obligations
without his having had a public hearing before a court,
and that, in consequence thereof, his responsibility was substantially
increased. The basic issue that
the European Commission had to decide was the scope of application of
Article 6 of the Convention. The
European Commission established that the guarantees contained in Article 6
of the Convention may be extended to administrative proceedings, even
though, they are not substantiated by judicial proceedings strictly
speaking. All the above on the
basis that they fulfill similar functions with effects on the civil rights
of the petitioner.
[30] Eur. Ct. H. Rts., Feldbrugge
v. Netherlands, Series A, Nº 99, Application Nº 8562/79, 8 EHRR 425,
29 May 1986. In this case Mrs. Feldbrugge
relied on
Article 6 para. 1 (art. 6-1) of the Convention. She claimed that, in the
determination of her right to health insurance allowances, she had not
received a fair trial before the President of the Appeals Board. The European Court
established that Article 6(1) was applicable in the present case since those
guarantees apply to "private-law disputes in the traditional
sense, that is disputes between individuals or between an individual and the
State to the extent that the latter had been acting as a private person,
subject to private law", and not "in its sovereign capacity.”
"The character of the legislation which governs how the matter
is to be determined ... and that of the authority which is invested with
jurisdiction in the matter are of little consequence": the latter may
be an "ordinary court, [an] administrative agency, etc." The European Court underscored that, "Only the
character of the right at issue is relevant.”
[31] In Can v. Austria, App. Nº 9300/81, 7 E. H. H. R. 421 (1984), the
European Commission found that restrictions on communications with the
attorney "during the initial months of the preliminary
investigation" were in violation of the right of the petitioner to
defend himself through legal assistance (para. 45, 61).
In approving a subsequent settlement, the European Court noted that,
"the
Court's case law does already provide certain
indications as to the answer to the question… whether and to what extent
Article 6 para. 3 (art. 6-3), is applicable at the stage of the preliminary
investigations."
8 E.H.H.R. para. 17 (1985). The
Court later expressly recognized the right of defence through legal
assistance in the preliminary phase in S.
v. Switzerland, 14 E.H.H.R., 670, para. 46-48 (1991), and in Imbrioscia
vs. Switzerland, 17 E.H.H.R., 441, para. 36 (Eur. Ct. H. Rts. 1993).
[32] Engel
v. The Netherlands, 1
E.H.H.R. 647 in para. 91 (1976).
[33] Ibid.
[34]
Campbell and Fell v. United Kingdom, 7 E.H.H.R., 165, paras. 95-99 (1984).
[35] Delta
v. France, 16 E.H.H.R.,
574, para. 36 (1990).
[36] Funke
v. France, 16 E.H.H.R.,
297 (1993), paras. 41-44.
[37]
Luedicke et al. v. Germany, 2
E.H.H.R., 149, para. 48 (1978).
[38]
Imbrioscia v. Suiza, 17
E.H.H.R., 441, para. 36, (1993).
[39] On various occasions the
Venezuelan Government referred to this administrative investigation as a
"judicial review" and a "documentary investigation."
[40] It is also important to stress
that in the case of Lutz, Englert and
Nolkenbockoff v. Federal Republic of Germany the European Court of Human
Rights concluded that in order to ascertain whether or not the offence in
issue belongs, according to the legal system of
the respondent State, to criminal law,
“the nature of the offence and (…) the nature and degree of
severity of the penalty that the person concerned risked incurring must be
examined, having regard to the object and purpose of Article 6 (art. 6) the
nature of the offence and, finally, the nature and degree of severity of the
penalty that the person concerned risked incurring must be examined, having
regard to the object and purpose of Article 6 (art. 6),”
of the European Convention, which is similar to Article 8 of the American
Convention. “Having
proceeded according to those principles, it concluded that the general
character of the legal provision contravened by Mr. Öztürk and the purpose
of the penalty, which was both deterrent and punitive, sufficed to show that
the offence in question was, for the purposes of Article 6 (art. 6),
criminal in nature.”
“The Court points out that the second and third criteria
adopted in the judgments in the Engel
and Others case and the Öztürk
case are alternative and not cumulative ones: for Article 6 (art. 6) to
apply in virtue of the words “criminal
charge”, it suffices that the offence in question should by its nature
be “criminal” from the point of view of the Convention, as in the
instant case, or should have made the person concerned liable to a sanction
which, in its nature and degree of severity, belongs in general to the “criminal”
sphere (see also the Campbell and Fell judgment of 28 June 1984, Series A
no. 80, pp. 35-38, §§ 69-73),” in
Eur. Ct. H. Rts., Lutz Case, Judgment of 25 August 1987, Case law 1984-1987, Cortes
Generales, Madrid, Spain, p.1165. As
in the above-cited case, the fact that a proceeding is in a preliminary
phase --be it that of investigation, preliminary proceeding, or preliminary
hearing on merits-- is immaterial under international law on human rights.
What is important is to determine whether or not the alleged offence
committed by the accused is of a criminal nature, as in the record
--misappropriation and embezzlement of funds-- and if this offence also
incurs a criminal penalty --Reinaldo Figueredo Planchart was sentenced to
two year and nine months imprisonment by the SCJ. Accordingly, the guarantees of due process enshrined in
Articles 8 and 25 of the Convention fully apply both to the administrative
investigation and to the preliminary hearing on merits before the Supreme
Court of Justice of Venezuela.
[41] Inter-Am.Ct.H.R., Advisory
Opinion OC-6/86 of May 9, 1986, The Word "Laws" in Article 30 of
the American Convention on Human Rights (Series A), para. 21, p. 11.
[42] Inter-Am.Ct.H.R., Advisory
Opinion OC-9/87 of October 6, 1987, op. cit., para. 27.
[43] See European Court of Human
Rights, Golder Case, Judgment of February 21, 1975, Series A, Nº 18, para.
28, in relation to Article 6 of the European Convention on Human Rights,
which essentially addresses the same rights and guarantees as Article 8 of
the American Convention.
[44] The right to a fair trial is
regulated in several articles of the Convention, namely, 7, 8, 9 and 25.
[45] Inter-Am.Ct.H.R., Advisory
Opinion OC-9/87, op.cit., para. 30.
[46] Inter-Am.Ct.H.R., Advisory
Opinion OC-8/87 of January 30, 1987, Habeas Corpus in Emergency Situations
(arts. 27.2, 25.1 and 7.6), para. 25.
[47] Inter-Am.Ct.H.R., Advisory
Opinion OC-9/87, op.cit., para. 24.
[48] Idem, para. 24.
[49] Ibidem.
[50] Inter-Am.Ct.H.R., Castillo
Petruzzi v. Peru, Judgment of May 30, 1999, para. 129.
[51] Supreme Court of Justice,
Judgment of May 30,1996, pp.4 and 5.
[52] Article 144 of the Constitution
states that "Any court that takes cognizance of charges or complaints
made against a member of the Congress, shall carry out the necessary
preliminary proceedings and refer them to the Supreme Court of Justice for
the purposes set out in Article 215, Clause 2 of this Constitution. If the court finds that there are grounds to proceed with the
cause, no trial may take place until the criminal suspect is stripped of his
immunity by the respective Chamber or by the Delegated Committee.”
[53] Although this aspect is examined
further on in this report, it should be mentioned that Article 211 of the
Constitution of Venezuela states the following: The Supreme Court of Justice
is the highest Bench in the Republic. No
appeals whatsoever shall be heard or admitted against its decisions.
[54] Inter-Am.Ct.H.R., Advisory
Opinion OC-9/87 of October 6, 1987, op.cit., para. 28, p. 15.
[55] IACHR, Annual Report 1985-1986,
Decision Nº 28/86, Case 9190, Jamaica, April 16, 1986, OEA/Ser.L/V/II.68,
Doc.8, rev.1, September 26, 1986, p. 81.
[56] Organic Law on the Protection of
Public Assets, Article 103.- The measures in respect of imprisonment
provided for in the instant Law shall be subject to effective compliance,
including those that are merely preventive and those that result from
transformation. Consequently,
any persons who are prosecuted for the offences herein established or for
offences connected thereto, shall enjoy neither the benefit of release on
probation --that is release on bail from a secure prison-- established in
the Code of Criminal Procedure, nor any such benefits provided in the
Probation Law (Ley de Sometimiento a Juicio y Suspensión Condicional de la
Pena), or that are provided for in the Penal System Law in relation to
release on probation or under supervision.
This
provision, together with secret preliminary proceedings, was abolished upon
promulgation of the new Organic Code of Criminal Procedure, which entered
into force on July 1, 1999. Nevertheless,
the Commission takes the view that the application of these provisions in
this particular case has negative repercussions on the victim’s right to a
fair trial.
[57] Article 234 of the Constitution: "It devolves upon the
Office of the Comptroller General of the Republic to control, monitor, and
inspect the nation’s incomes, expenditures and assets, as well as
transactions in connection therewith. The
law shall determine the organization and workings of the Office of the
Comptroller General of the Republic, as well as the timeliness, nature and
scope of its intervention."
Article 1 of
the Organic Law of the Office of the Comptroller General of the Republic: "The Office of the Comptroller General of the Republic
shall, in accordance with the law, control, monitor and inspect the
nation’s incomes, expenditures and assets, as well as any transactions in
connection therewith."
Articles 25
and 30 of the Organic Law on Protection of Public Assets: Art.25: "The Office of the Comptroller General of
the Republic has competence to investigate and inspect all acts connected
with public assets. To that end
it may carry out such inquiries as it deems necessary into the agencies and
entities that are mentioned in Article 4 of this law .”
Art.30: "The
Office of the Comptroller General of the Republic is also competent to carry
out all the necessary acts designed to substantiate criminal or civil
responsibility. Having
concluded its substantiation, it shall convey the results of its
investigation to the Office of the Attorney General in order for the latter
to adopt the pertinent measures."
[58] See the pertinent part of the
judgment of the Political and Administrative Chamber of the Supreme Court of
Justice, of August 11, 1994, para. 62 in the instant report.
[59]Instituto de Estudios Superiores
del Ministerio Público, Doctrina Constitucional y Contencioso
Administrativa 1977-1986, Publicación Nº 12, Caracas, Venezuela, 1988,
Oficio Nº 14.854, pp. 123-127.
[60] Judgment of the Political and
Administrative Chamber of the Supreme Court of Justice, November 17, 1983,
in Revista de Derecho Público, Nº
16, Caracas, Venezuela, p. 151.
[61] Judgment of the Political and
Administrative Chamber of the Supreme Court of Justice, February 25, 1988 in
Revista de Derecho Público, Nº
33, Caracas, Venezuela, 1988, p. 90.
[62] Judgment of the First Chamber for
Administrative Disputes, July 7, 1988, in Revista de Derecho Público, Nº 35, Caracas, Venezuela, 1988, p.
91.
[63] Supreme Court of Justice,
Proposed Report of Justice Ismael Rodríguez Salazar, pp. 7 and 8, Section
22, pp. 175-176, November 16, 1993.
[64] It is interesting to observe that
in the case of Funke v. France,
the European Commission and Court of Human Rights applied Article 6(1) of
the European Convention --similar to Article 8(1) of the American
Convention-- to customs proceedings brought prior to the start of a criminal
proceedings. In this case,
"proceedings relating to interim orders connected with the main
proceeding were brought by the customs authorities in order to obtain the
evidence required to provide a solid basis for the charges (...).
The temporal connection between these two proceedings shows that they
were very closely related, as was the prosecution mounted against the
petitioner, which depended on the prior decisions adopted in the customs
proceedings.” In consequence,
both the Commission and the European Court of Human Rights decided that
Article 6(1) was applicable in full (16 E.H.H.R. 297 (1993), paras. 44 and
60).
[65] Supreme Court Justice, Hildegard
Rondón de Sansó, in casting her dissenting votes of November 16, 1993 and
May 30, 1996, stated, inter alia,
the following:
According to
the decision, there is no trial until an arrest warrant or an indictment has
been issued; instead there are proceedings preparatory to that trial, in
consequence whereof the accused is not entitled to defense counsel or
attorneys, nor is he able to contest the charges brought against him.
In the opinion of the dissenter, this conception clashes with modern
public conscience of what is just and legal by perpetuating the fiction that
an accused is not on trial, but the subject of a simple inquiry, on which
basis he does not have full rights of defense.
In the opinion
of the dissenter, should express laws establishing such a provision exist,
they would run contrary to the most elementary protection of the rights
inherent to the human person (...) In the opinion of the dissenter, a
criminal proceeding starts with the issuance of an order to proceed, which
is when the weight of the court’s investigative proceeding is brought to
bear on the criminal suspect, with all the consequences attendant thereon.
The dissenter
finds that the aforementioned interpretation of the rules of criminal
procedure creates situations of flagrant injustice by permitting thousands
of individuals on trial to be completely deprived of any defense during a
fundamental stage. As to the
possibility of the attorneys for the accused to participate in the
proceedings, in the dissenter’s view they were legally entitled to
participate on his behalf, on which basis the representation that they
adduce may not be denied.
In light of
all the foregoing considerations the dissenter finds that the Court should
have heard the arguments presented by the attorneys for the accused and made
their decision thereon, since she considers that they were fully entitled
legally to represent him (...) The Court, moreover, should have revised its
thesis for determining the moment at which the criminal trial commences,
thereby defeating the inadmissible fiction that until an arrest warrant or
an indictment has been issued the trial has not started and the accused may
not avail himself of any means for his defense.
With respect
to the final judgment of the Supreme Court of Justice of May 30, 1996,
Justice Rondón de Sansó further stated, inter
alia, that:
The decision
is based on a series of suppositions, which, in the opinion of the
dissenter, are contrary to law; some expressly established as such, and
others on the basis of failure to pronounce on essential points that were at
issue. In respect thereof, I consider it necessary to review, step by step,
the main charges that were brought against those convicted today, which
comprised the supposed "iter
criminis" (process of the crime), in order to examine,
approximately in the same order as the sequence of events, the fundamental
points of law present in that process.
...
The dissenter
cannot omit to outline the following facts:
1.- The
dissenter observes that in the first three judgment dockets and in part of
the fourth, essentially devoted to the part containing the decision (...)
the evidence adduced by the defense is neither set out nor analyzed, which
prevents one from knowing the replies that the defense made to the charges
contained in the petitions, indictments, documentary evidence, and other
evidence adduced.
2.- Continuing
the line of observation of the foregoing paragraph, we ask ourselves, why
are the arguments asserted during the accused’s hearing and the document
containing the decisions not reproduced or cited?. However, procedural
defects and lack of motive aside, the dissenter considers that
aforementioned observations could constitute a violation
of the right of defense, since respect for that right implies not
only ensuring access to all the records; knowledge of the charges; the
opportunity to reply to the charges; exercise of the right to bring evidence
on his behalf; and, the right to challenge the evidence of the opposing
party, but also, --and in particular -- the guarantee that the court shall
analyze the arguments presented and contrast the opposing positions, failing
which, the fact that the accused exercised the aforementioned rights would
become both worthless and meaningless.
By the same
token, the dissenter should mention that in discarding a series of items of
evidence proffered by the defense, the judgment lists a number of documents
which it regards as generically immaterial or irrelevant, without, however,
providing its grounds for such an assessment, which again raises doubts over
the observance of the relational principles applicable to all judgments, one
of which is clarity of the reasons on which the decision is based.
By contrast,
the judgment ascribes value to witnesses who gave narrative testimony, some
without even mentioning the source from which they obtained their
information. All of the foregoing
suggests a biased judgment, given the unequal treatment of the parties.
From all of
the aforementioned, the dissenter is obliged to recall the historic
responsibility that all judicial officials have in the delicate task of
dispensing justice, in a system such as ours, which essentially tends toward
a literal interpretation of the law and demands, accordingly, that the
reasons for a judgment appear in the record, and which understands that the
foremost guarantee of the accused is the permanent
presumption of innocence. Under such a system, the judge cannot,
therefore, neglect in his judgment to confirm and verify what emerges from
the record (emphasis in the original).
Supreme Court of Justice, Caracas, Republic of Venezuela, Dissenting
Vote of Hildegard Rondón de Sansó, November 16, 1993, pp. 194-203, and
May 30, 1996, pp. 837, 862, 863, and 864.
[66] Supreme Court of Justice,
Judgment of May 30, 1996, op.cit., p.758.
[67] Supreme Court of Justice,
Judgment of May 30, 1996, op.cit., p. 759.
[68] It should be recalled that
Reinaldo Figueredo Planchart did not have access to the record, to the
prosecutor’s indictment, or to his right of defense by his attorney from
the start of the investigation until the issuance of the of the warrant for
his arrest by the Supreme Court of Justice.
[69] Maier Julio B.J., El
Derecho Procesal Argentino, Bs. As. (1989), p. 257.
[70] See in respect thereto, European
Commission of Human Rights, Case 9037-80, X
v. Switzerland, Decision of 5 May 1981, D.R. 24, p. 224.
[71] As stated in the instant report,
Article 103 of the Organic Law on Protection of Public Assets, which was
applied in the instant case, provides, inter
alia, that, "The measures in respect of imprisonment provided for
in the instant Law shall be subject to effective compliance…
Consequently, any persons prosecuted for the offences herein
established or for offences connected thereto, shall
enjoy neither the benefit of freedom on probation --that is on bail from
a secure prison-- established in the Code of Criminal Trial
Procedure..." (emphasis added).
[72] Eur. Ct. H. Rts., Case
of Minelli v. Switzerland, Judgment of 25 March 1983, on violation of
the presumption of innocence (Article 6(2) of the European Convention on
Human Rights), in Tribunal Europeo de Human Rights, 25 Años de Jurisprudencia 1959-1983,
Cortes Generales, Madrid, Spain, p. 954.
In the specific case of Mr. Minelli, the Court found that the
Government had violated Article 6(2) of the European Convention, similar to
Article 8(2) of the American Convention, which recognizes the principle of
presumption of innocence.
[73] Eur. Ct. H. Rts., Case
of Lutz, Englert and Nolkenbockhoff v. Federal Republic of Germany,
Judgment of 25 August 1987, op.cit., p. 1166.
[74] Eur. Ct. H. Rts., Case
of Minelli v. Switzerland, op.cit., p. 955.
[75] See paragraph 71 of the present
report for these statements in greater detail.
These statements appeared on p. 21 of El Universal newspaper, in Caracas, Venezuela, on February 16, 1995,
p. 21.
[76] The public statements by Justice
Rafael Alfonzo Guzmán were made on Friday, February 17, 1995, on the 8:00
p.m. news program on Channel 10, owned by
TELEVEN.
[77] Eur. Ct. H. Rts., Bonisch
v. Austria (1985), Series A, Nº 92; Kostovski
v. Netherlands (1989), Series A, Nº 166; and Urterpertinger
v. Austria (1986), Series A, Nº 110.
[78] The domestic laws of a State
cannot supercede this international commitment. As the U.N. Human Rights Committee has recognized in
interpreting Article 14 (5) --similar to 8(2).h of the Convention--, it
"is not intended to leave the very existence of the
right of review to the discretion of the States parties, since the rights
are those recognized by the Covenant, and not merely those recognized by
domestic law.”
Salgar v. Colombia, Nº
64/179 (1982), reproduced in Human
Rights Committee, Selected Decisions under the Optional Protocol, pp.
127-30, para. 10.4. Article
14(5) of the International Covenant on Civil and Political Rights provides
the following: "Everyone convicted of
a crime shall have the right to his conviction and sentence being reviewed
by a higher tribunal according to law.”
[79] Inter-Am.Ct.H.R., Case of Castillo
Petruzzi et al. v. Peru, Judgment of May 30, 1999, para. 161.
[80] See paragraph 94 herein: THE
RIGHT TO A NATURAL JUDGE AND COMPETENT TRIBUNAL
[81]Inter-Am.Ct.H.R., Case of Castillo
Petruzzi et al. v. Peru, op.cit., para. 161.
[82] IACHR, 1998 Annual Report,
Chapter IV, Human Rights Developments
in the Region, p. 1124.
[83] Eur. Ct. H.R., Axen
Case, Judgment of December 8, 1983, Publicity of Judicial Procedure, Tribunal
Europeo de Derechos Humanos, 25 Años de Jurisprudencia 1959-1983,
Publicación de las Cortes Generales, Printed at Closas-Orcoyen, S.L.,
Madrid, Spain, 1981.
[84] Article 73 of the old Code of
Criminal Trial Procedure:
Preliminary investigation
proceedings, whether instituted ex officio or by petition of the injured
party, shall be secret, except from
the Representative of the Office of the Attorney General, until declared
concluded. Neither shall
they be secret from the accused against whom an arrest warrant is served and
for the accuser, in cases where the law demands the appearance for
questioning of the accused party or the presentation of the accusation by
the injured party, from the issuance by the Tribunal of the warrant of
arrest or the indictment and from its issuance or confirmation of the
decisions referred to by Articles 99, 109 in its last paragraph, and 206. Art. 208.- When the preliminary inquiry appears to
confirm the commission of a punishable act, but there emerge no indications
as to who its author might be, the inquiry shall be kept open until he is
discovered (emphasis added).
[85] Código Orgánico Procesal Penal
y Exposición de Motivos, Oficial Gazette Nº 5208 of January 23, 1998,
Editorial Buchivacoa, Caracas, Venezuela, pp. 9, 12, 18, and 32.
[86] Principally in the following
cases: Sramek v. Austria, Series A, Nº 84; Campbell and Fell v. United Kingdom, Series A, Nº 39; Ringeinsen
v. Austria, Series A, Nº 13; Engel
v. Netherlands, Series A, Nº 22; and Schiesser
v. Switzerland, Series A, Nº 78.
[87] See, for example, the Piersack
Case, Judgment of 1 October 1982, Series A, Nº 5.
[88] Eur. Ct. H. Rts., Padovani
v. Italy, Judgment of 26 February 1993, Series A, Vol. 257-B al H, para.
27.
[89] Eur. Ct. H. Rts., De
Cubber v. Belgium, 7 EHHR 236, para. 26 (1984) citing Delcourt
v. Belgium, 1 EHHR 355, para. 31 (1970).
[90] See paragraph 71 herein.
[91] Supreme Court of Justice,
Judgment of May 30, 1996, Caracas, Venezuela, Dissenting Vote of Justice
Hildegard Rondón de Sansó, pp. 866 and 867.
[92] Supreme Court of Justice,
Judgment of May 30, 1996, op.cit., p. 820.
[93] Eur. Comm. H. Rts., Case of Crociani
v. Italy, 22 D.R. 147, 228 (1980).
[94] Eur. Comm. H. Rts., Case
of Jespers v. Belgium, 22
D.R. 100, 127 (1980).
[95] Inter-Am.Ct.H.R., Castillo
Petruzzi et al. v. Peru, Juydgment of May 30, 1999, para. 204. [96] Communication of the petitioners of May 23, 1994.
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