Report No. 7 (2021) IACHR. Petition No. 1320-10 (Venezuela)

• Year: 2021
• Case Type: Admissibility
• Respondent State: Venezuela
• Court: Inter-American Comission of Human Rights

REPORT No. 7/21

PETITION 1320-10

REPORT ON ADMISSIBILITY

JULIO MARTIN HERRERA VELUTINI

VENEZUELA

OEA/Ser.L/V/II

Doc. 7

10 J. 2021

Original: Spanish

Approved electronically by the Commission on J. 10, 2021.

Cite as: IACHR, Report No. 7/21. Petition 1320-10. A.. Julio Martin H.V.. Venezuela. J. 10, 2021.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Asdrubal Aguiar
Alleged victim:	Julio Martin H.V.
Respondent S.:	Venezuela
Rights invoked:	Articles 7 (personal liberty), 8 (fair trial), 11 (privacy), 21 (property), 25 (judicial protection) of the American Convention on Human Rights1

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:	September 20, 2010
Additional information received at the stage of initial review:	May 26, 2011; M.2., 2012; and M. 28, 2013
N. of the petition to the S.:	M. 29, 2017
S.'s first response:	A. 30, 2018
Additional observations from the petitioner:	October 10, 2018
Advising of posible archiving:	J. 30, 2017
Petitioner response to advising of posible archiving:	February 8, 2017

III. COMPETENCE

Competencia Ratione personae:	Y.
Competencia Ratione loci:	Y.
Competencia Ratione temporis:	Y.
Competencia Ratione materiae:	Y., American Convention (instrument of ratification deposited on August 9, 1977)

IV. 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
Rights declared admissible:	Articles 7 (personal liberty), 8 (fair trial), 9 (freedom from ex post facto laws), 11 (privacy), 21 (property) and 25 (judicial protection) of the American Convention, in connection with Articles 1.1 (obligation to respect rights) and 2 (domestic legal effects)
Exhaustion of internal remedies or or applicability of an exception to the rule:	Y., the exception of Article 46.2.a) of the American Convention is applicable
Timeliness of the petition:	Y., in the terms of Section VI

V. ALLEGED FACTS

1. The petitioner invokes the international responsibility of the V.S. for the violation of the human rights of Mr. Julio Martin H.V., by virtue of the allegedly arbitrary initiation of criminal proceedings against him, with the issuance of an arrest warrant, and of the alleged confiscation of his shares in a financial institution of the country through irregular maneuvers by the Government; all of this within the framework of a S. policy of harassment and persecution of entities and individuals participating in the financial and banking sector, which was aimed, according to the petitioners, at establishing a socialist S. model in Venezuela under the administration of H.C..

2. The petition explains that Mr. H.V. is a professional banker, an important actor in the V. financial system, and that through a complex corporate structure he was the owner of the bank Banco Real - Banco de Desarrollo, C.A.. With the coming into power of P.H.C., he explains, a government policy of persecution of private-sector financial and banking entities was undertaken in Venezuela, which was manifested both in the expropriation and incorporation into the public sector of several banks, and in multiple hostile and stigmatizing statements and expressions made by high-ranking government agents, from the President of the Republic onwards. As stated in the petition,

for some years, progressively, by decision of the S. a political and economic model has been installed in Venezuela, that openly departs from free private initiative; businessmen are branded as 'oligarchs' and 'imperialists', for which purpose a process of indiscriminate expropriations and confiscations of both the means of production and real estate property, industries and businesses is developed, under the argument that they belong to the people and will be in a better condition under the direct control of the S. and its government.

According to the petition, on different occasions P.C. declared that he would expropriate the banks in order to transfer their ownership and operation to the S., and this decision effectively materialized several times.

3. In the framework of this emerging context of harassment of financial actors, M.H. was approached by Mr. P.T.C., a person close to P.H.C. and his government, who offered to buy his shareholding stake in Banco Real - Banco de Desarrollo, CA, to which M.H. agreed. On A. 14, 2009, Mr. H. sold to Mr. Torres his shares in the companies that controlled said Bank, namely, Banreal Holding S.L. and Banreal Holding C.V. By virtue of this sale of his shares, Mr. H. effectively divested himself completely of his share ownership over the aforementioned banking entity. Lieutenant Arné Chacón Escamillo, brother of a Minister at that moment and a confidant of P.C., assumed the presidency of Banco Real.

4. After the sale of Mr. H.V.’s property rights over Banco Real - Banco de Desarrollo, this financial institution entered a state of illiquidity, and was intervened by the Superintendency of Banks (SUDEBAN) on December 4, 2009. N., the government merged the entity with other banks so as to transform them all into a new S. bank, Banco Bicentenario. As a consequence of this situation of financial crisis in the country, P.C. declared on December 11 that the affected bankers were “traitors of the revolution”, and stated that “we continue to advance in the confrontation of these banks and bankers, who robbed, swindled and looted many citizens. I ordered the swift taking of all the bankers' assets”.

5. Petitioners allege that as a direct and immediate effect of these statements, the Public Ministry decided to initiate a criminal investigation against M.H., related to the situation of Banco Real; as explained in the petition, the Public Ministry “attempted to show that in the case of Banco Real, its liquidity problems had to do with prior operations and not with current ones, before to the sale that J.M.H.V. made to Pedro Torres Ciliberto with the knowledge and authorization of SUDEBAN, with Mr. H. being, therefore, totally disconnected from its administration and ownership ”. The investigation was initiated by the Fiftieth, Fifty-third and Fifty-eighth National-level Prosecutors of the Caracas Metropolitan Area, at the request of the Superintendency of Banks, on December 5, 2009, for the crimes of appropriation and diversion of resources administered by the Bank and association to commit crimes. As stated by the Prosecutor's Office, at the time of its intervention by SUDEBAN, the Banco Real-Banco de Desarrollo presented a negative equity gap and illiquidity, indicating that said situation was the end product of “criminal activity carried out in 2008 and 2009 by those who were in charge of the direction and administration of the Bank ”. This statement was made in the brief addressed by the Public Ministry to the Eleventh Judge of First Instance in functions of Control of the Criminal Judicial Circuit of the Caracas Metropolitan Area on M. 10, 2010, requesting the precautionary detention of Mr. H.. According to the petitioners, with this

the Public Ministry arbitrarily drags and extends the administration of J.M.H.V. up until the moment in which the Banco Real Banco de Desarrollo C.A. was intervened, when its administrators and owners were different […]; this being a bank, it bears repeating, which was no longer owned by M.H., from whose administration he had separated himself with the knowledge and under the authorization of the very same banking authorities of Venezuela, long before the clear motives that gave rise to the intervention of said bank by the S. had taken place.

In other words, petitioners consider that the criminal proceedings were opened and developed based on a false assumption, given that at the time of the intervention of the bank by SUDEBAN, M.Z. was no longer the owner, director, manager or employee of Banco Real - which demonstrates, in their opinion, the political, arbitrary and persecutory motivation of said criminal proceedings. They specify that the Public Ministry did not properly justify its request for the preventive detention of Mr. H., limiting itself to stating that the directors of Banco Real had "diverted the resources administered by the bank to the benefit of the illicit economic group of which they are part", and that "the Superintendency of Banks and other financial institutions, in the special inspection visit held on July 31, 2009, observed irregularities in 61 loans”. As specified in the petitioners’ additional observations, the Public Ministry accused Mr. H. of being responsible for the irregular granting of loans, without compliance with the internal procedures of risk analysis, client analysis and demand for guarantees, and without the clients allocating the money to the purposes for which the loans were granted. The petitioners submit several substantive arguments on the nature, operation, and legality of the loans made by Banco Real that were the...