Report No. 97 (2009) IACHR. Petition No. 84-07 (Venezuela)

Year2009
Petition Number84-07
Report Number97
Respondent StateVenezuela
Case TypeAdmissibility
CourtInter-American Comission of Human Rights
Alleged VictimAllan R. Brewer Carías

REPORT No. Nº 97/ 09

PETITION 84-07

ADMISSIBILITY

ALLAN R. BREWER CARÍAS

VENEZUELA

September 8, 2009

I. SUMMARY

1. On January 24, 2007, the Inter-American Commission on Human Rights (hereinafter “the Commission”) received a petition submitted by Pedro Nikken, Hélio Bicudo, Claudio Grossman, Juan Méndez, Douglas Cassel, and Héctor Faúndez (hereinafter "the petitioners ") alleging that the courts of the Bolivarian Republic of Venezuela (hereinafter "the State") are responsible for the political persecution of constitutional law expert Allan R. Brewer Carías in the context of a judicial proceeding against him for the crime of conspiracy to violently change the Constitution in the context of the events of April 11 to 13, 2002.

2. The petitioners alleged that the State is responsible for violating the rights to personal security, judicial guarantees, honor and dignity, freedom of expression, movement and residence, equal protection, and judicial protection, provided for at Articles 7, 8, 11, 13, 22, 24, and 25 of the American Convention on Human Rights (hereinafter “the American Convention " or "the Convention"), as well as breaching its duty to respect the rights enshrined in the Convention and to adopt provisions of domestic law in keeping with Articles 1(1) and 2 of the Convention. They also alleged that their claim is admissible by application of the exceptions to the rule of prior exhaustion of domestic remedies provided for at Article 46(2) of the American Convention. The State, for its part, alleged that Allan Brewer Carías is subjected to a criminal proceeding with all the guarantees of due process, that he is absent from the country and, therefore, the proceedings could not move forward, and that the petition is inadmissible because the domestic remedies had not been exhausted.

3. After examining the allegations received, and pursuant to the requirements set forth at Articles 46 and 47 of the American Convention, the Commission decided to declare the claim admissible with respect to the alleged violation of Articles 2, 8, 13 and 25 of the American Convention, in connection with its article 1(1). In addition, it declared the claim inadmissible with respect to the alleged violation of Articles 7, 11, 22, and 24 of the American Convention and decided to give notice of the report to the parties and order its publication in its Annual Report to the General Assembly.

II PROCESSING BEFORE THE COMMISSION

4. The petition was recorded under number P 87/07. After the preliminary analysis of the claims, on October 24, 2007, additional information was requested from the petitioners on the judicial remedies pursued and the procedural effects of the physical absence of the accused in Venezuela, among other issues. On November 19, 2007, the petitioners requested an extension, which was granted on November 27, 2007. By communication of December 27, 2007, the petitioners filed their response. By communications of February 25 and April 30, 2008, the petitioners submitted additional information.

5. Once the preliminary review of the petition was completed, the Commission decided to process it, and on June 17, 2008, a copy of the pertinent parts was sent to the State, which was given two months to submit observations in keeping with Article 30(2) of the Rules of Procedure. The period expired without the State submitting its observations.

6. On January 14, 2009, the petitioners asked the Commission to continue processing the case. On February 4, 2009, the Commission reiterated its request for observations to the State; it did not receive any response. On February 6, 2009, the petitioners filed a communication by which they questioned the reiteration of the request for observations from the State. On August 31, 2009, after the deadline originally set by the Commission had passed, the State submitted its response to the petition.

III. THE PARTIES’ POSITIONS A. The petitioners’ position 1. Context

7. The petitioners allege that from December 2001 to April 2002 there was an intense social mobilization of protest against several policies of the Government of President Hugo Chávez Frías. They indicate that on April 11, 2002, the commanders of the Armed Forces stated their repudiation of the authority of the President of the Republic, and the next day General Lucas Rincón informed the population that “the President of the Republic was asked to resign from his position, which he accepted.”

8. The petitioners allege that in the early morning hours of April 12, 2002, Pedro Carmona Estanga, one of the leaders of the civic protests, communicated with jurist Allan Brewer Carías and sent a vehicle to pick him up at his residence. They indicate that Brewer Carías was taken to “Fort Tiuna,” headquarters of the Ministry of Defense and of the General Command of the Army. They indicate that he was received there by two lawyers who showed him a draft decree, later known as the “Carmona Decree,” which ordered the dissolution of the constituted authorities and the establishment of a “government of democratic transition.”

9. They allege that at approximately noon Allan Brewer Carías went to the Miraflores Palace to personally tell Carmona Estanga that he rejected the document as it strayed from the Constitution and was in violation of the Inter-American Democratic Charter. They indicate that he finally had to do so by telephone. That same day Mr. Pedro Carmona Estanga announced the dissolution of the constituted authorities and the establishment of a “government of democratic transition,” among other measures. They indicate that the announcement of a “coup against the Constitution” provoked reactions that led to the reinstatement of Hugo Chávez as President of the Republic on April 13, 2002.

10. They note that afterwards the media speculated as to the presence of Allan Brewer Carías during the early morning hours of April 12, 2002 at “Fort Tiuna” and identified him as the intellectual author or actual drafter of the so-called “Carmona Decree.” They indicate that such speculation was publicly refuted by Allan Brewer Carías.

11. They indicate that the National Assembly designated a “Special Parliamentary Commission to investigate the events of April 2002.” In its August 2002 report this Special Commission urged that part of the government designated the Poder Ciudadano to investigate and determine the responsibilities of citizens “…who, without being vested with public functions, acted in an active and coordinated fashion in the conspiracy and coup d’etat.” The list of citizens to be investigated includes Allan Brewer Carías “as his participation in the planning and execution of the coup d’etat has been shown….”

2. Facts related to the judicial proceeding

12. The petitioners allege that from 2002 to 2005 at least four provisional prosecutors investigated the facts around the drafting of the “Carmona Decree,” among other facts related to the events of April 11 to 13, 2002. They note that initially the investigation was entrusted to provisional prosecutor José Benigno Rojas, who did not file charges. They indicate that he was replaced by provisional prosecutor Danilo Anderson, who did not file charges either, and who was murdered in November 2004. Subsequently, Luisa Ortega Díaz, Sixth Provisional Prosecutor of the Public Ministry at the National Level with Full Jurisdiction (hereinafter also “Sixth Prosecutor”), took over the investigation and filed a number of charges. They allege that since then, the pattern of conduct, of both the Public Ministry and the provisional judges who have seen the case, has been to attach value to those aspects of the evidence that may contribute to convicting Allan Brewer Carías and discard those aspects that show his innocence.

13. The petitioners allege that during the investigative stage, the defense counsel for Allan Brewer Carías were unable to obtain a copy of any of the items in the record; rather, they were only allowed to transcribe, by hand, the various documents in the record. They allege, therefore, that they were deprived of a reasonable time and conditions for his defense. They argue that during the review of the record, Allan Brewer Carías found that the texts transcribed in the formal indictment (acta de imputación fiscal) did not match the contents of the videos that he considered to be evidence. In view of the foregoing, the provisional prosecutor was asked to make a specialized technical transcription of the content of all the videos with interviews by journalists used as evidentiary elements in the indictment. The request was denied on April 21, 2004, on the basis that “it would contribute nothing to the investigation.”

14. They also allege that on April 21, 2004, the Sixth Prosecutor rejected the testimony of Nelson Mezerhane, Nelson Socorro, Yajaira Andueza, Guaicaipuro Lameda, and Leopoldo Baptista, offered by the defense, based on them being referential witnesses whose statements lacked probative value in light of the law in force.

15. They indicate that on January 27, 2005, the Sixth Provisional Prosecutor filed the indictment against Allan Brewer Carías for the offense of conspiracy to change the Constitution violently by drafting the Carmona Decree. They allege that this was based on the allegation by acting Army Colonel Ángel Bellorín, who indicated that “it is a notorious fact repeated and known to all through various means of communication that the authors of that decree are citizens Allan Brewer Carías, …, known … as experts on constitutional matters.…”

16. They indicate that the proceeding in which the case against Allan Brewer Carías is included was initially assigned to Josefina Gómez Sosa, Temporary Twenty-Fifth Judge of Control. At the request of the Sixth Prosecutor, the Twenty-Fifth Judge of Control...

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