Report No. 121 (2011) IACHR. Petition No. 96-04 (Venezuela)

• Report Number: 121
• Petition Number: 96-04
• Year: 2011
• Respondent State: Venezuela
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: María Angélica González y otros

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REPORT No. 121/11¹

PETITION 96-04

ADMISSIBILITY

MARÍA ANGÉLICA GONZÁLES, OLIMPÍADES GONZÁLES AND FAMILY MEMBERS

VENEZUELA

October 19, 2011

1. SUMMARY

1. On January 22, 2004, the Inter-American Commission on Human Rights (hereinafter "the Inter-American Commission" or "the Commission") received a complaint presented by Olimpíades Gonzáles² and Maria Angélica Gonzáles, (hereinafter "the petitioners"³), against the Bolivarian Republic of Venezuela, (hereinafter "the State" or "Venezuela"). The petition alleges a failure to provide compensation for the preventive detention of the Wayúu indigenous members of the Gonzáles family: Fernando, María Angélica and Belkis Mirelis Gonzáles and Wilmer Antonio Barliza Gonzáles⁴, who had been arrested on November 23, 1998, tried and acquitted; and of Olimpíades and Luís Guillermo who had been arrested on January 29, 1999 and released due to a lack of evidence implicating them in criminal responsibility in the State of Zulia. As soon as the petition proceedings had begun, Maria Angélica González conveyed news of the murder of Olimpíades Gonzáles, which occurred on December 11, 2006, including allegations of the lack of an investigation and punishment for those responsible for his death.

2. The petitioners allege that the State is responsible for the violation of the rights to personal integrity, personal liberty, to compensation, and to judicial protection, enshrined in Articles 5, 7, 10, and 25 of the American Convention on Human Rights (hereinafter "the American Convention"), all in conjunction with the general obligation to respect and guarantee rights, set out in its Article 1.1. For its part, the State alleges that: (1) compensation is unfounded, given that the preventive detention was in accordance with the law, (2) the domestic remedy relating to the interpretation of the rule recognizing the right to compensation has not been exhausted; and (3) that the investigation into Olimpíades Gonzáles's death is still ongoing.

3. After considering the position of the parties in the light of the requirements on admissibility set out in Articles 46 and 47 of the American Convention, the Commission concludes that it is competent to examine the claim, and that it is admissible for the alleged violation of the rights enshrined in Articles 5, 7, and 25 of the American Convention, in relation to its Articles 1.1, and 2. In addition, the Commission considers admissible a possible violation of Articles 4 and 8 of the American Convention in relation to its Articles 1.1 and 2. Finally, the Commission concludes that the petition is inadmissible as regards the alleged violation of Article 10 of the American Convention and that the allegation as to the lack of compensation for the preventive detention of Olimpíades and Luís Alberto Gonzáles is inadmissible due to a failure to exhaust domestic remedies. Therefore the Commission decides to notify the report to the parties, to order its publication and to include it in its Annual Report to the General Assembly of the OAS.

2. PROCEEDINGS BEFORE THE COMMISSION

4. The IACHR registered the claim under No. 96-04, and after undertaking a preliminary examination, on December 20, 2004, sent it to the State for its observations. On February 17, 2005, the State presented its response, which was sent to the petitioners for their observations. On May 4, 2005, the petitioners presented their response, which was sent to the State for its observations. On August 8, 2005, the State requested an extension of time to respond. On November 15, 2005, the State presented its response, which was sent to the petitioners for them to present their observations.

5. On March 22, 2006, the petitioners presented and additional brief, which was sent to the State for its observations. On May 17, 2006, the State pointed out that in a meeting held with the petitioners, they had reached a friendly settlement agreement and sent the proposal signed by both parties. This agreement included a series of measures to resolve the claims raised as well as a time frame for adopting them. On June 20, 2006, the Commission sent this communication to the petitioners and formalized the beginning of the friendly settlement stage, putting itself at the disposal of the parties and requesting that within a time limit of one month they should comment on the said offer.

6. On June 22, 2006, the petitioners requested that the Commission conduct a follow-up and review on the fulfillment of the agreement. This communication was sent to the State for its observations. On July 20, 2006, the State reiterated its willingness to arrive at a friendly settlement and indicated on May 16, 2006 that it had drafted "an initial document establishing a number of parameters in the search for a friendly settlement between the parties."

7. On October 23, 2006, Olimpíades Gonzáles made it clear that the State had not fulfilled any of the points of the agreement and that the State had shown no willingness in this regard. The Commission was therefore requested to intervene and "bring the matter before the Inter-American Court for a definitive sanction" should the State persist in its failure to comply. It was also made clear that the State had not granted the protection ordered by the Second Control Tribunal, and that he was being threatened and was in a vulnerable condition. This communication was sent to the State for its observations on December 5, 2006.⁵

8. On August 28, 2007, the Commission informed the parties that it had concluded its intervention in the friendly settlement proceedings due to the lack of any meaningful response from the State and that it had decided to continue with the petition proceedings. On October 26, 2007, the Commission requested additional information from the petitioners. On March 7, 2008, the petitioners presented their response, which was sent to the State for its observations.

9. On August 22, 2008, the petitioners filed additional information, which was sent to the State together with a reiteration of a previous request for information. On March 25, 2011, the petitioners presented additional information, which was sent to the State for its observations. On May 26, 2011, the State asked for an extension of 10 days in order to present its observations, which was granted by the Commission. The State presented its response on June 22, 2011, which was sent to the petitioners for their information.

3. POSITION OF THE PARTIES

1. The Petitioners

10. The petitioners allege that on November 23, 1998, the Anti-Homicide Brigade/Branch of the Zulia Technical Judicial Police Unit, issued a "warrant to proceed" for the death of Carmen Fernández. As a result of preliminary investigations, on the same day, Fernando, María Angélica and Belkis Mirelis Gonzáles were arrested.

11. They maintain that on December 10, 1998, the First Criminal Judge of First Instance for the State of Zulia (hereinafter the "First Instance Judge") ordered arrest warrants against these three individuals; the first as aider and abettor and the other two as perpetrators in the crime of first degree murder. On January 8, 1999, the accused lodged an appeal against the preventive detention decision, and the Fourth Superior Criminal Judge for the State of Zulia (hereinafter the "Fourth Judge") upheld the First Instance Judge's decision.

12. They point out that on January 29, 1999, the Intelligence Section of the Zulia State Police preventively detained took Olimpíades and Luís Guillermo Gonzáles, and Wilmer Antonio Barliza Gonzáles,...