Report No. 23 (2009) IACHR. Petition No. 1133-05 (Venezuela)

• Petition Number: 1133-05
• Report Number: 23
• Court: Inter-American Comission of Human Rights
• Respondent State: Venezuela
• Case Type: Admissibility
• Alleged Victim: Raúl José Díaz Peña

REPORT No. 23/09[1] PETITION 1133-05 ADMISSIBILITY RAÚL JOSÉ DÍAZ PEÑA VENEZUELA March 20, 2009 I. SUMMARY 1. On October 12, 2005, the Inter-American Commission on Human Rights (hereinafter “the Commission”) received a petition submitted by Patricia Andrade of the organization Venezuela Awareness Foundation (hereinafter "the petitioner") alleging the responsibility of agents of the Bolivarian Republic of Venezuela (hereinafter “the State,” “the Venezuelan State,” or "Venezuela") for the alleged illegal detention of Raúl José Díaz Peña (hereinafter "the alleged victim") on February 25, 2005, the irregularities in the criminal proceeding against him, and his conditions of detention at the Directorate of Intelligence and Prevention Services (DISIP: Dirección de los Servicios de Inteligencia y Prevención) at El Helicoide, Caracas. 2. The petitioner argues that the State is responsible for violating the right to humane treatment, to a fair trial, and the right to privacy, provided for at Articles 5, 8, and 11 of the American Convention on Human Rights (hereinafter also “the American Convention” or “the Convention”). During the processing of the petition, violations were also alleged of the right to life, the right to personal liberty, the right of assembly, the right to equal protection, and the right to judicial protection, provided for at Articles 4, 7, 15, 24, and 25 of the American Convention in relation to the obligation to ensure the rights, established at Article 1(1) of the Convention. 3. After examining the parties’ positions and in compliance with the requirements set forth at Articles 46 and 47 of the American Convention, the Commission decided to declare the case admissible for purposes of examining the alleged violation of Articles 5, 7, 8, 25, in connection with the obligations established at Article 1(1) and, in application of the principle of iura novit curia, in connection with the obligations established at Article 2 of the American Convention. The Commission decided to declare the petition inadmissible with respect to the alleged violations of Articles 4, 11, 15, and 24 of the American Convention. It also decided to give notice of the report to the parties, and to order its publication. II. PROCESSING BEFORE THE COMMISSION 4. On October 12, 2005, the Commission received the initial petition, which was registered under number P1133-05. Along with the initial petition, the petitioner filed a request for precautionary measures on behalf of the alleged victim, which was granted by the Commission on October 31, 2005. The precautionary measures are in force as of the date of adoption of this report. 5. With respect to the processing of the petition, on April 24, 2005, the Commission requested the additional information on the judicial remedies pursued in the domestic jurisdiction in relation to his case. On June 14, July 10, and July 18, 2006, the Commission received communications from the petitioner by which she submitted additional information. On August 8, 2006, the Commission forwarded a copy of the pertinent parts of the petition and the briefs containing additional information to the State, which was given two months to submit observations, in keeping with Article 30(2) of the Rules of Procedure. 6. On August 28 and November 22, 2006, the Commission received briefs containing additional information from the petitioner, which were forwarded to the State for its observations. On January 11, 2007, the Commission received a brief from the State by which it requested that a copy of the initial petition be sent to it again; it was resent on February 23, 2007. On March 28, 2007, a brief of additional information was received from the petitioner, which was passed on to the State for its observations. 7. On May 4, 2007, the State’s brief of observations was received; it was transmitted to the petitioner on May 29, 2007, for her observations. On May 7 and 16, 2007, the Commission received briefs with additional information from the petitioner, which were transmitted for the State. On June 29, 2007, the Commission received the petitioner’s observations, which were transmitted to the State for its observations. On May 21, 2008, the Commission asked the petitioner for up-to-date information on the situation of the alleged victim, which was sent in on June 4, 2008, and forwarded to the State for its observations. On October 2 and 20, 2008, the Commission received additional information from the petitioner, which was transmitted to the State for its observations. On December 3, 2008, the Commission received additional information from the petitioner, which was transmitted to the State for its observations. III. THE PARTIES’ POSITIONS A. The petitioner’s position 8. By way of background, the petitioner notes that as of October 22, 2002, Raúl José Díaz Peña, like many other Venezuelans, went to witness the demonstrations which at that time were taking place at the Plaza Francia in the Altamira section of Caracas. On February 25, 2003, at the same time as the attacks were perpetrated, using explosives, against the Consulate General of the Republic of Colombia and the International Trade Office (Oficina de Comercio Internacional) of the Kingdom of Spain, Raúl José Díaz Peña was at Plaza Altamira. The petitioner argues that due to the attacks the Public Ministry began to make accusations against and persecute those persons who frequented the Plaza Altamira. She argues that several of the persons detained due to these events were subjected to torture by state agents to secure forced confessions. 9. The petitioner argues that on September 9, 2003, the 22nd Court of First Instance (for Review) of the Criminal Judicial Circuit for the Metropolitan Area of Caracas authorized the DISIP to seize Raúl José Díaz Peña’s vehicle to take the evidence necessary for clarifying the facts that are investigated “related to detonating explosive artifacts at the offices of the diplomatic representations of the Republics of Colombia and Spain.” She alleges that the pick-up truck was seized and taken to the DISIP, and that an expert examination was begun without the presence of Mr. Díaz Peña, who arrived at the time it had been scheduled and not accompanied by an attorney. It is alleged that Mr. Díaz Peña signed a document that indicated that he had been a witness to the expert examination without any of the officials present explaining to him that it had begun before he arrived. The petitioner alleges that in performing the expert examination, the chain of custody was violated, and that the security, presentation, and integrity of the evidence were not assured. She indicated that the results of the expert examination determined that traces of a highly explosive substance were found in the vehicle and that on October 6, 2003, an officer of the Homicide Investigations Division of the Criminal Justice Corps (CICPC) noted, in a police report, that the seized vehicle, property of Raúl José Díaz Peña, transported the explosives used in the attacks of February 25, 2003. 10. The petitioner indicates that Raúl José Díaz Peña was summonsed on numerous occasions to declare about the attacks of February 25, 2003, and that he appeared each time. She notes that on January 15, 2004, the Office of the 62nd Prosecutor for the Metropolitan Area of Caracas sought an arrest warrant for Mr. Díaz Peña for allegedly committing the crimes of conspiracy (agavillamiento), public intimidation against the conservation of public and private interests, damage to public property, and moderate lesions. She alleges that on January 22, 2004, the Eleventh Court of First Instance (for Review) of the Judicial District for the Metropolitan Area of Caracas ordered that Mr. Díaz Peña be detained. 11. As for the alleged illegal detention of Raúl José Díaz Peña, the petitioner notes that the Office of the 62nd Prosecutor sent a summons to Mr. Díaz Peña for him to come forward with his attorney to declare on February 25, 2004. She alleges that on February 25, 2004, the alleged victim appeared at the Office of the Prosecutor and at that moment the prosecutor notified him of the charges and the arrest warrant for him, and proceeded to detain him and take him to the DISIP jail at El Helicoide. She alleges that contrary to the provisions of Article 117 of the Organic Code of Criminal Procedure (COPP), Mr. Díaz Peña was not read his rights nor shown the warrant for his arrest. The petitioner notes that on February 26, 2004, a hearing for presentation of the detainee was held at the Eleventh Court of Control and that on February 27, 2004, the same court ordered the preventive judicial deprivation of liberty of Mr. Díaz Peña based on the existence of sufficient elements for showing the commission, in the degree of complicity, of the crimes for which he was arrested. 12. The petitioner alleges that on April 6, 2004, the representative of the Public Ministry lodged an accusation against the alleged victim, and that on April 22, 2004, Raúl José Díaz Peña’s defense filed a motion for nullity due to failure to abide by the forms and conditions established in the law and also asked that the expert examination offered by the Public Ministry be annulled and requested that the detention be revoked. She alleges that in June 2004 a constitutional amparo action was filed before the Eleventh Court, which was rejected by the judge in charge. The petitioner argues that on June 15, 2004, the preliminary hearing was held in which the Eleventh Court admitted in full the accusation brought against Mr. Díaz Peña, embraced the legal characterization of the facts offered by the Office of the Prosecutor, determined that an oral and public trial should begin, and considered it proper to keep the order of deprivation of liberty in place. 13. As for the...