REPORT
N°
91/01 CASE
12.258 ROBERTO
JAVIER HERNÁNDEZ PAZ VENEZUELA October
10, 2001 I.
SUMMARY
1.
On March 3, 2000 the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission” or “the IACHR”)
received a complaint lodged by Programa
Venezolano de Educación-Acción en Derechos Humanos [Venezuelan
Program for Education and Action on Human Rights] (PROVEA) and the Center
for Justice and International Law (CEJIL) alleging the illegal arrest,
solitary confinement, and forced disappearance of Roberto Hernández Paz.
The petitioners say that the
alleged acts constitute violations of several provisions contained in the
American Convention on Human Rights (hereinafter the "American
Convention"), such as the general obligation to respect rights
(Article 1(1)); right to life (Article 4); humane treatment (Article 5);
personal liberty (Article 7), judicial guarantees (Article 8(1)) and
judicial protection (Article 25); as well as Article 1 of the
Inter-American Convention on Forced Disappearance of Persons.
2. The State
considers that the remedies under domestic law have not been exhausted
because the facts are under investigation by the Ministerio
Público [Justice Department], as well as the National Ombudsman in
conjunction with Venezuelan courts; that a writ of habeas
corpus is not the appropriate mechanism to investigate the alleged
acts; and that the duty to
investigate is not designed to attain a given end, and therefore, it is
not breached just because the desired result
is not achieved. 3.
Without prejudging the merits of the matter, the IACHR concludes in
this report that the case is admissible because it meets the requirements
established in Articles 46 and 47 of the American Convention.
Accordingly, the Inter-American Commission decides to notify the
parties of its decision and to continue with its analysis of the merits
regarding the alleged violation of Articles 1(1), 4, 5, 7, 8(1), and 25 of
the American Convention, as well as of Article 1 of the Inter-American
Convention on Forced Disappearance of Persons. II.
PROCESSING BY THE
INTER-AMERICAN COMMISSION 4.
The petition was lodged on March 3, 2000 and transmitted to the
Venezuelan State on March 27, 2000, as Case Nº 12.258, together with a
request for information. On July 19, 2000, the IACHR reiterated its request for
information to the Venezuelan Government.
On August 24, 2000, the State submitted its comments, which were
conveyed to the petitioners on September 8, 2000. The petitioners requested an extension on October 11, 2000,
in order to respond to the comments contained in reply of the Venezuelan
State; the Commission granted them 30 days starting from November 15,
2000. The petitioners
presented their comments on January 17, 2001.
On February 12, 2001, the IACHR sent the Venezuelan Government the
additional comments on the State’s reply.
On February 27, 2001, at its 110th session, the Inter-American
Commission held a hearing of the case with both parties present.
On March 23, 2001, the petitioners sent the IACHR additional
information, which was forwarded to the Venezuelan Government on May 7,
2001. On August 20, 2001, the
Venezuelan State sent the report of the Ministerio
Público of Venezuela on Case N° 12.307, José Francisco Rivas Fernández
(disappeared in Vargas state), which contains a reference to the position
of the Roberto Hernández Paz case. III.
POSITIONS OF THE PARTIES REGARDING ADMISSIBILITY
A.
The petitioners
5.
On December 15, 1999, the date of the referendum on the proposed
new Constitution, the heaviness of the rains was giving rise to concern
both in Vargas state and in other parts of the country.
Over the days that followed Venezuela experienced the aftermath of
the worst natural disaster in its modern history.
6.
In these circumstances, the measures adopted by a significant
number of State agents in an effort to restore the necessary public order
to safeguard people’s lives and security allegedly resulted in a number
of human rights violations.
7.
The petitioners allege that on December 23, 1999, Roberto Javier
Hernández Paz was at the house of his uncle, Carlos Paz, located in the
Tarigua area of Caraballeda, Vargas state.
At 7:30 p.m. that day, a vehicle identified as belonging to the Dirección de Servicios de Inteligencia y Prevención [Directorate
of Intelligence and Prevention Services] (DISIP) parked opposite the house
and approximately five officials got out.
Two of them, armed, entered the house without a search warrant and
without identifying themselves. Roberto
Hernández was in the lounge watching television with his uncle, whereupon
the officials of the DISIP proceeded to arrest him using force and,
dragging him, took him out of the house without explaining to him or his
uncle the reason for his arrest. Minutes
later, while in the garden of the house in which Roberto Hernández was
arrested, his uncle, Carlos Paz, heard a gunshot and his nephew cry out,
“Chamo me mataste." [“Man, you’ve killed me.”] Then he
heard another shot. However, he was unable to observe these events because
he suffers from cataracts, a complaint that affects sight. The alleged victim was dragged some 30 meters to the house
entrance where, according to neighbors, he was put aboard the DISIP jeep,
and taken away without any explanations given as to the reason for his
arrest or the place of detention.
8.
On December 30, 1999, citizen Aleidis Maritza Hernández, Roberto
Hernández’s sister, went to the DISIP Headquarters located in the
Helicoid of Caracas in order
obtain information on her brother’s whereabouts.
At the DISIP Headquarters a declaration was taken from her and she
was told that they knew nothing about her brother. She also went to the
National Guard Headquarters in Vargas state but neither was she given any
information there on the whereabouts of her brother. 9.
On January 21, 2000, a writ of habeas
corpus was filed by PROVEA with the Second Court of First Instance [Tribunal
Segundo de Control] of the Criminal Circuit for Vargas state. This
court, in a written communication of January 21, 2000, addressed to the
Director of the DISIP, requested information as to whether or not Roberto
Hernández had been arrested by officials of that agency. 10.
On January 24, 2000, Army Lieutenant Colonel Jesús Urdaneta, the
then- Director of the DISIP, told the court that: On
December 23, 1999, no DISIP officials were in the Tarigua area of
Caraballeda, Vargas state That
citizen Roberto Hernández Paz has not been arrested by DISIP officials 11.
On January 25, 2000 the Second Court of First Instance of the
Criminal Circuit for Vargas state found that there was no evidence on
which to make a decision with respect to the application for a writ of habeas
corpus filed as a result of the disappearance of Roberto Hernández
Paz. 12.
On February 4, 2000 the Court of Appeal of the Criminal Circuit for
Vargas state upheld the decision of the Second Court of First Instance in
which it found that it had no evidence on which to proceed with respect to
a decision regarding the writ of habeas corpus filed on behalf of Roberto Javier Hernández Paz. 13.
As to exhaustion of domestic remedies, in the case of the forced
disappearance of Roberto Hernández Paz, the petitioners sought the
opinion of Dr. Jesús María Casal, an expert in Venezuelan constitutional
law, who said the following: I-
Scope of protection of habeas corpus
in Venezuelan law. In
our legal system, habeas corpus,
a term used by Article 43 of the Ley
Orgánica de Amparo sobre Derechos y Garantías Constitucionales [Organic
Law on Protection of Constitutional Rights and Guarantees] (hereinafter
Organic Law on Amparo) and a
part of our legal tradition, is a manifestation of the right to protection
provided in Article 27 of the Constitution.
Its sphere of application is basically determined by its purpose: freedom and security of the individual. The
Venezuelan Constitution of 1999 ratified the applicability of protection
of personal liberty, or habeas
corpus, in cases of presumed forced disappearance of persons. The
Constitution, immediately after recognizing the right to personal liberty,
prohibits and punishes forced disappearance of persons, in keeping with
international instruments on human rights. The
Organic Law on Amparo provides
the possibility of appeal against the first instance ruling in an amparo proceeding. It also makes consultation obligatory in the
event no appeal is forthcoming. There
is no possibility in an amparo
proceeding of nullification of the judgment in second instance. It
has been argued that before petitioning the Inter-American Commission on
Human Rights an “appeal” for review provided in Article 336, section
10 of the Constitution should be attempted to dispute the rejection in
second instance of the writ of habeas
corpus filed in the amparo
action. This thesis has no
basis whatever in Venezuelan constitutional law, nor is it supported by
inter-American jurisprudence on the rule of prior exhaustion of domestic
remedies, since: a)
Article 336, section 10 of the 1999 Constitution does not provide
for an “appeal”; rather it recognizes the power of the Constitutional
Chamber to review non-appealable final judgments rendered by the courts of
the Republic in amparo actions
or in the framework of “diffuse control” of constitutionality. This
power of the Constitutional Chamber may be exercised at the petition of
the adversely affected party; however, it may also be applied ex officio or at the request of a third party, in keeping with
constitutional jurisprudence. Since this is not an appeal, there is no
time limit for any interested party to present the respective application. b)
In answer to the question posed, what matters most, however, is
that the Constitutional Chamber in many judgments has had occasion to
clarify the scope of the power of review, and has consistently and
repeatedly maintained that it is exercised in “exceptional”
circumstances and is of a “discretional” nature. Furthermore, the
Chamber has ruled that an individual who lodges an application for review
of an amparo judgment with the Chamber cannot invoke any right as grounds
for its admission. Admission of an application for review is a
discretionary power of the Constitutional Chamber, in respect of which the
individual cannot invoke any constitutional right. c)
The foregoing is confirmed by the consolidated opinion of the
Constitutional Chamber, according to which it is not obliged to pronounce
a decision on all applications for review of amparo judgments. It may “selectively” choose and admit for
review such cases as might appear relevant to it. However, it is not
required to explain its decisions, even when it flatly rejects an
application for review. Composed
of these elements, a review is a unique mechanism that is not designed to
place in the hands of the individual an instrument that enables them to
demand justice before a court of law but, rather, one intended to empower
the Constitutional Chamber to develop judicial policy, in the best sense
of the expression. Concretely, the review mechanism allows the Chamber to
establish binding criteria on the interpretation of constitutional
provisions, thus ensuring a certain uniformity of criteria. Only
in a some cases-those that happen to strike a chord with the Judges of the
Constitutional Chamber-is an application for review admitted (in practice
hardly ever), which is not to say that those that are admitted will
definitely result in the nullification of the judgment. This
implies that the amparo or habeas
corpus action, in both first and second instance, is a procedural
mechanism that ensures the individual the possibility of demanding the
cessation of violations of his constitutional rights, and the courts are
required to remedy, via that process, the situations infringed by the
violations of such rights. Review, on the other hand, is a wholly
exceptional mechanism that is only set in motion when the Constitutional
Chamber, in use of its discretional power of selection, deems it
appropriate. The
rule of prior exhaustion of domestic remedies cannot be applied to a
procedural mechanism whose characteristics may be summarized as follows: a)
It is not a remedy or an action that is available to a victim of
human rights violation; it is a discretional power of the Constitutional
Chamber, which the latter may exercise ex officio or in response to the
application of an interested party, there being no preclusive time limit
on presentation. b)
Persons who apply for a review of judgment in an amparo
proceeding are not entitled to a decision on its admissibility or legal
basis. c)
Review is not the third instance of an amparo
action; on the contrary, a review applies to non-appealable final
judgments in amparo proceedings or on constitutionality, which have the authority
of res judicata. Hence, it is a
mechanism that is not only special but also exceptional in nature, and it
is up to the Constitutional Chamber to exercise it by selectively
deciding, at its own discretion, whether or not to admit or process cases
submitted for review. 14.
The petitioners consider that the domestic remedies of Venezuela
were exhausted by the filing of the writ of habeas
corpus on January 21, 2000 with the Second Court of First Instance of
the Criminal Circuit for Vargas state, which found on January 25, 2000
that there was no evidence on which to proceed; together with the
confirmation on February 4, 2000 of that court’s decision by the Court
of Appeal of the Criminal Circuit for Vargas state. 15.
The petitioners hold that the facts alleged in the petition amount
to the violation by the State of Venezuela of several provisions contained
in the American Convention on Human Rights, such as the duty to respect
and ensure rights (Article 1(1)); the right to life (Article 4); the right
to humane treatment (Article 5); the right to personal liberty (Article
7); the right to judicial guarantees and judicial protection (Article 8(1)
and 25); and Article 1 of the Inter-American Convention on Forced
Disappearance of Persons. B.
The State 16.
The State of Venezuela considers that domestic remedies have not
been exhausted because procedures and investigations initiated by the Ministerio Público and by the National Ombudsman in conjunction
with the Venezuelan courts are currently underway with a view to
clarifying the events that occurred in Vargas state. 17.
Upon examination of the habeas
corpus actions, the criminal courts requested information from the
security agencies alleged to be holding the persons in custody. In all
these cases, the Ministry of Defense, as well as the National Guard and
the DISIP, reported that the citizens on whose behalf the writs of habeas
corpus had been filed were not being detained on the orders of those
security agencies. 18. In response to this information from the security agencies, the first instance criminal courts and the Courts of Appeal found that the procedural prerequisites to enable the habeas corpus action to proceed had not been met, because it was not the adequate mechanism to effectively investigate the allegations, since the appropriate way to proceed was to open a normal, formal inquiry, following the guidelines and rules set down in the Organic Code of Criminal Procedure, in order accurately to establish the true facts of the matter and the identities of the perpetrators and participants therein. Consequently the Superior Court Prosecutor for Vargas state was sent a written communication ordering him immediately to open the respective inquiries, which means that the remedies under domestic law were not exhausted with the aforesaid decision but, rather, it was necessary to pursue those indicated by the court. 19.
The State of Venezuela mentions that the Inter-American Court of
Human Rights has ruled that states have a legal duty to investigate human
rights violations occurring in their jurisdiction, and further says, that
this duty is not designed to attain a given end, and, therefore, it is not
breached just because the desired result
is not achieved. The State also says that said duty is breached when the
state apparatus acts in such a way as to prevent the adequate
investigation of the facts, with the result that the violation goes
unpunished. 20.
The State further says, in respect of the refusal of the writ of habeas corpus filed, that the appropriate procedure is a review by
the Constitutional Chamber, which can nullify the decision in order for
another habeas corpus proceeding
to be instituted, as occurred in the case of the disappearance of Mr.
Monasterios,[1]
where the Constitutional Chamber first found inadmissible the amparo
proceeding initiated by the Ombudsman of the Metropolitan Area of Caracas
against a court decision to refuse habeas
corpus in a case of presumed forced disappearance. The Chamber adduced
that both instances of the amparo
proceeding had been exhausted, for which reason there was no basis for
another amparo action: the right to expeditious and effective judicial
protection of constitutional rights should be considered complied with
(Judgment of April 25, 2000). However, the Constitutional Chamber itself
later decided to exercise its exceptional and discretional power of review
provided in Article 336, section 10 [of the Venezuelan Constitution of
1999].
21.
The State says that at the request of the Ministerio
Público the Constitutional Chamber may conduct a review and criminal
proceedings may be instituted to clarify the facts and establish the
whereabouts of the missing person. The State further says that the
investigation has not concluded since the missing person has not been
found alive or his corpse located and, therefore, the remedies under
domestic law have not been exhausted. IV.
ANALYSIS
A.
The Inter-American
Commission’s competence ratione
personae, ratione materiae, ratione temporis, and ratione
loci 22.
The petitioners are entitled to lodge complaints with the IACHR
under Article 44 of the American Convention. Those complaints cite as
alleged victims individuals on whose behalf Venezuela undertook to respect
and ensure the rights recognized in the American Convention. Insofar as
the State is concerned, the Commission finds that Venezuela is a state
party to the American Convention, having ratified it on August 9, 1977.
Furthermore, the IACHR finds with regard to passive competence ratione
personae, that it is a generally recognized principle of international
law that the state is responsible for the acts of all its organs,
including those of its Judiciary. Therefore, the Commission is competent
to take up the instant petition. 23.
The Commission has ratione
loci competence to take up the petition because it claims violations
of rights protected in the American Convention that allegedly took place
in the territory of a state party to that treaty. 24.
The Commission has ratione
temporis competence inasmuch as the alleged violations contained in
the petition are said to have occurred when the duty to respect and ensure
the rights recognized in the American Convention was in force for the
State of Venezuela. As regards the alleged violations of the
Inter-American Convention on Forced Disappearance of Persons, the
Commission finds that Venezuela ratified that Convention on January 19,
1999. Accordingly, the facts that are the subject matter of the instant
petition allegedly occurred when said international instrument was in
force in Venezuela. 25.
Finally, the Commission has ratione
materiae competence because the petition alleges violations of human
rights protected by the American Convention and by the Inter-American
Convention on Forced Disappearance of Persons. Other
admissibility requirements for the petition
a.
Exhaustion of domestic remedies 26.
Article 46(1)(a) and (b) of the American Convention require the
exhaustion of remedies under domestic law. 27.
The petitioners consider that the domestic remedies of Venezuela
were exhausted by the filing of the writ of habeas
corpus on January, 21, 2000 with the Second Court of First Instance of
the Criminal Circuit for Vargas state, which found on January 25, 2000
that there was no evidence on which to proceed; together with the
confirmation on February 4, 2000 of that court’s decision by the Court
of Appeal of the Criminal Circuit for Vargas state. 28.
On August 24, 2000 the State of Venezuela argued failure to exhaust
domestic remedies on the basis that the petition under examination is
currently the subject matter of an active and ongoing investigation, with
the necessary procedures to clarify the facts being continuously carried
out by the Ministerio Público,
as well as by the National Ombudsman in conjunction with the Venezuelan
courts.
29.
In the case sub lite the Commission finds that the writ of habeas corpus was rejected in first instance on January 25, 2000, a
decision that was upheld by the Court of Appeal on February 4 of that
year. Although the State
affirms that the relatives of the victim have yet to exhaust the appeal
for review, in the opinion of the Commission this is not an adequate
remedy for establishing the whereabouts of the victim in a case of forced
disappearance. As the
Honorable Court has mentioned, based on the early contentious cases it
heard: Habeas
corpus would be the normal means of finding a person presumably detained
by the authorities, of ascertaining whether he is legally detained and,
given the case, of obtaining his liberty.[2]
30.
The Venezuelan State further says that the Superior Court
Prosecutor for Vargas state was sent a written communication instructing
him immediately to order the respective inquiries, “which means that the
remedies under domestic law were not exhausted with the aforesaid decision
but, rather, it was necessary to pursue those indicated by the court.”
The Commission regards as important the efforts that the State is
making to identify those responsible for the acts with which the instant
case is concerned, since a criminal proceeding is indeed the adequate
mechanism for that purpose. However,
as the Court has found, "[T]he purpose of habeas corpus is not only
to guarantee personal liberty and humane treatment, but also to prevent
disappearance or failure to determine the place of detention, and,
ultimately, to ensure the right to life".[3]
Bearing in mind that the alleged victim disappeared on December 23, 1999,
the Commission considers that the State has had more than enough time to
determine the whereabouts of Roberto Hernández Paz.
Furthermore, the Commission is compelled to say that once the writ
of habeas corpus was rejected in
both instances by the courts, the remedies under domestic law were fully
exhausted. As provided in
Article 10 of the Inter-American Convention on Forced Disappearance of
Persons, to which Venezuela is a state party, “the right [of a victim]
to expeditious and effective judicial procedures and recourse shall be
retained as a means of determining the whereabouts or state of health of a
person who has been deprived of freedom, or of identifying the official
who ordered or carried out such deprivation of freedom”
A year and nine months have elapsed and the status of the alleged
victim remains that of disappeared. 31.
In respect of the State's argument that the victim's relatives are
required to exhaust the criminal proceeding underway, the Commission
should reiterate its doctrine, which is as follows: In
the case of crimes of public action, and even in those which may be
prosecuted by a private actor, it is not valid to demand exhaustion of
domestic remedies of the victim or the victim's relatives, for the state
has a duty to maintain public order, and therefore it has an obligation to
set the criminal law system into motion and to process the matter until
the end. As the Inter-American Court of Human Rights has stated, the
obligation to investigate "must have an objective and be assumed by
the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon their
offer of proof, without an effective search for the truth by the
government." [4] The
preceding statement is confirmed in those procedural regimes that deny the
victim or victim's relatives any standing, as the state monopolizes the
ability to press criminal charges. And where such standing is provided
for, its exercise is not compulsory, but optional for the person who has
suffered harm, and does not take the place of state action.
[5]
32.
Accordingly, the Commission finds that the petitioners exhausted
domestic remedies when the Court of Appeal rendered its decision on the
writ of habeas corpus.
33.
With respect to the citation made by the State of the Court’s
jurisprudence that the duty to investigate “is
not designed to attain a given end, and therefore, it is not breached just
because the desired result is not
achieved", it should be mentioned that that court has also
found that "[I]n certain circumstances, it may be difficult to
investigate acts that violate an individual's rights. Nevertheless, [said
investigation] must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective."[6]
b.
Deadline for lodging the petition 34.
The petition was lodged on March 3, 2000, within the time limit of
six months provided in Article 46(1)(b) of the American Convention.
Therefore, that requirement has also been met. c.
Duplication of
proceedings and res judicata 35.
The record in the instant case contains no information whatever
that might indicate that the matter is pending
in another international proceeding for settlement, or that it has been
previously studied by the Inter-American
Commission. Therefore, the IACHR concludes that the exceptions provided in
Articles 46(1)(d) and 47(d) of the American Convention do not apply.
d.
Nature of the alleged
violations
36.
The IACHR finds that the allegations, if proven, would tend to
establish violations of rights contained in Articles 1(1), 4, 5, 7, 8(1)
and 25 of the American Convention, and Article 1 and related provisions of
the Inter-American Convention on Forced Disappearance of Persons. V.
CONCLUSIONS 37.
The Inter-American Commission concludes that it is competent to
examine the merits of the instant case and that the petition is admissible
in accordance with Articles 46 and 47 of the American Convention.
Based on the factual and legal arguments given above and without
prejudging the merits of the matter,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES: 1.
To declare the instant case admissible as regards the alleged
violation of rights protected in Articles 1(1), 4, 5, 7, 8(1) and 25 of
the American Convention, and Article 1 and related provisions of the
Inter-American Convention on Forced Disappearance of Persons. 2.
To notify the parties of its decision. 3.
To continue with its analysis of merits in the case. 4.
To publish this decision and to include it in its Annual Report to
the OAS General Assembly. Done
and signed at the headquarters of the
Inter-American Commission on Human Rights, in Washington, D.C., on this
the 10th day of October, 2001.
(Signed): Claudio
Grossman, President; Juan E. Méndez, First Vice-President; Marta
Altolaguirre, Second Vice-President; Commission members Robert K. Goldman,
Peter Laurie, Julio Prado Vallejo, Hélio Bicudo.
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[1]
Constitutional
Chamber of the Supreme Court of Venezuela, Judgment of August 14,
2000. [2]
Inter-Am. Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, Series C N°4, para. 65. [3]
Inter-Am. Ct.H.R., Castillo Páez Case, Judgment of November 3, 1997,
para. 83. [4]
Inter-Am. Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, Series C N°4, para.177. [5]
IACHR, 1997 Annual Report, Arges Sequeira Mangas Case v Nicaragua, p.
735, para. 97. [6]
Inter-Am. Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, Series C N°4, para. 177.
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