Report No. 164 (2017) IACHR. Petition No. 222-07 (Venezuela)

• Year: 2017
• Petition Number: 222-07
• Report Number: 164
• Respondent State: Venezuela
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Santiago Adolfo Villegas Delgado

REPORT No. 164/17

PETITION 222-07

REPORT ON ADMISSIBILITY

SANTIAGO ADOLFO VILLEGAS DELGADO

VENEZUELA

OEA/Ser.L/V/II.166

Doc.195

30 November 2017

Original: Spanish

Approved by the Commission at its session No. 2110 held on November 30, 2017.
166^th Special Period of Sessions.

Cite as: IACHR, R. No. 164/17, Petition 222-07. A.. S.A.V.D.. Venezuela. November 30, 2017.

www.cidh.org

REPORT No. 164/17

PETITION 222-07

REPORT ON ADMISSIBILITY

SANTIAGO ADOLFO VILLEGAS DELGADO

VENEZUELA

NOVEMBER 30, 2017

I. INFORMATION ABOUT THE PETITION

Petitioner:	German Eduardo Gomez Remolina1
:	Santiago Adolfo V. Delgado
S. denounced:	Venezuela
R.s invoked:	Articles 5 (humane treatment), 7 (personal liberty), 8 (fair trial), 11 (privacy), 24 (equal protection) and 25 (judicial protection) of the American Convention on Human R.s 2, in relation with its Articles 1.1 and 2; and Articles 3 (obligation of nondiscrimination), 4 (inadmissibility of restrictions) and 7 (work) of the San Salvador Protocol

II. PROCEDURE BEFORE THE IACHR³

D. on which the petition was received:	February 28, 2007
Additional information received at the stage of initial review:	M. 5 and May 31, 2007
D. on which the petition was transmitted to the S.:	J. 10, 2007
D. of the S.’s first response:	M. 3, 2008
Additional observations from the petitioner:	November 9 and 15, 2007; A.8., 2008; December 10, 2010; January 3, 2011; September 13, 2012 and January 12, 2017
Additional observations from the S.:	September 5, 2012 and M. 31, 2017

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y., American Convention (from August 9, 1977, when the instrument of ratification was deposited, until September 10, 2013, when denunciation entered into force)
Competence Ratione materiae:	Y.

IV. ANALYSIS OF DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
R.s declared admissible	Articles 5 (personal integrity), 7 (personal liberty), 8 (R. to a Fair Trial), 24 (R. to Equal Protection) and 25 (R. to Judicial Protection) of the American Convention, in connection with Articles 1.1 and 2 thereof
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., under the terms of section VI
Timeliness of the petition:	Y., under the terms of section VI

V. ALLEGED FACTS

1. The petitioner argues that in the context of an investigation related to drug trafficking, the P.M. of Venezuela took possession of the farm called "El Palmichal", property in which 102 packages of 50 kg each of urea were seized, a substance also used for the production of cocaine hydrochloride. He states that based on the foregoing, the P.M. requested the immediate arrest of S.A.V. (hereinafter "the alleged victim") in his capacity of administrator of the farm, for the crimes of concealment of chemical products susceptible to being diverted to the production of narcotics and the legitimation of capital. He alleges that Mr. V. was arrested on September 23, 2005 and was arbitrarily, disproportionately and illegally held on pretrial detention for more than five years.

2. The petitioner notes that on September 23, 2005, the alleged victim was brought before the 8th Court of Control of the Táchira S. Criminal Circuit, which proceeded to draw up the record of the arrest. He alleges that the record indicated that the alleged victim was in good physical condition despite having stated that at the time of his arrest a black hood was placed on his head in order to take a photograph, which the petitioner describes as inhuman and degrading treatment. He indicates that, the following day, the P.M. requested the proceedings to be “totally reserved” for a period of fifteen days due to the seriousness of the facts investigated. The petitioner points out that this significantly affected the alleged victim's right to defense because he did not have the necessary elements to prepare his defense strategy. He states that on September 25, 2005, the 8th Court confirmed the preventive detention of the alleged victim, who filed an appeal that was denied on November 30, 2005, by the Court of Appeals of the Judicial Circuit of Táchira.

3. He indicates that on January 25, 2006, the alleged victim filed an request for cognizance (recurso de avocamiento) before the Criminal Cassation Chamber of the Supreme Court of Justice alleging irregularities in the process and in the arrest warrant because it was arbitrary, abusive and disproportionate, and for the violation of the right of defense and due process, due to the confidentiality requested made by the P.M.. On J. 25, 2006, the Supreme Court of Justice granted the request , annulled the hearing to present and the preliminary hearing and ordered the case to be reinstated to the time when the formal accusation was made.

4. The petitioner notes that on August 28, 2006, the hearing on the confirmation of charges was held before the Control Court of the S. of L., an authority that confirmed the preventive detention and ordered the alleged victim's detention in the Uribana prison. On September 11, 2006, the alleged victim filed a constitutional protection (amparo) action before the Court of Appeals, which was not admitted on September 15, 2006. The decision was appealed and on December 18, 2006, the Constitutional Chamber of the Supreme Court of Justice denied the appeal, stating that the alleged violations had been corrected with the hearing of August 28, 2006.

5. According to the petitioner, on September 24, 2007, the judge granted an extension of one additional year to the 2-year term established as the limit for the application of preventive detention. A. that time, the alleged victim filed a first application for the cancellation of the measure which was denied on December 17, 2008. He then submitted a new application that was rejected on January 15, 2009. The appeal filed against this rejection was also denied on M. 5, 2009 on the grounds that substitute precautionary measures cannot be granted in cases of crimes against humanity (drug trafficking). F., the petitioner filed a constitutional protection (amparo) action that was declared inadmissible on J. 31, 2009 by the Supreme Court.

6. He further notes that on M. 25, 2010 - that is, 4 years and 6 months after Mr. V.’ arrest - Court No. 4 handed down a sentence condemning him to a prison sentence of 14 years and 6 months for the crimes of concealment of chemical products susceptible to being diverted for the production of psychotropic narcotic substances and legitimation of capital. The alleged victim filed an appeal that was dismissed, and on August 27, 2010, filed a cassation appeal.

7. The petitioner alleges the violation of the right to personal liberty as a consequence of the arbitrary imposition of a measure of preventive detention, which exceeded the limits of reasonableness and proportionality. He highlights that in 2008 the Constitutional Chamber of the Supreme Court of Justice issued a precautionary measure suspending the effects of the Organic Law against illicit trafficking and consumption of narcotic substances, stating that "no measure of personal coercion may exceed the minimum penalty provided for each crime, nor exceed two years. " He notes, however, that the appeals lodged to request the lifting of the measure were not effective.

8. On the other hand, the petitioner states that, in the framework of the criminal proceedings, the alleged victim’s rights to defense and due process were violated, as well as the principles of presumption of innocence and legality. He says that testimonies provided by the defense were not considered, that nonexistent testimonies were given value and that in the condemnatory sentence, evidentiary elements that had not been incorporated into the process were taken into account. He also alleges that the legal qualification of the crime of "legitimation of capital" was erroneously applied because it would not have been possible to prove the illicit origin of the assets. The petitioner also alleges that, erroneously and in contravention of the principle of presumption of innocence, it was assumed that urea was a chemical with which cocaine hydrochloride was manufactured for the subsequent manufacture of narcotic drugs, immediately ruling out that it was a legal product for agricultural use. In this regard, he states that the evidence showing that the chemical was used for productive agricultural purposes - specifically to treat the farm's land and other nearby properties- was not considered. He states that a soil test determined that these fields were...