Braulio Jatar Alonso v. Venezuela, Case 11.724, Report No. 69/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 485 (2000).
BRAULIO JATAR ALONSO
REPUBLIC OF VENEZUELA
October 19, 2000
On February 3, 1997 the Inter-American Commission on Human Rights (hereinafter
the Commission) received a petition dated January 30, 1997 regarding
the alleged violation by the Republic of Venezuela (hereinafter Venezuela
or the State) of rights protected in the American Convention on
Human Rights (hereinafter the Convention) to the detriment of
Mr. Braulio Jatar Alonso (hereinafter the petitioner).
Mr. Braulio Jatar Alonso was indicted for the crimes of extortion and
attempted peddling of influences
public official, as a result of events that occurred while he was ad
honorem advisor to the Chair of the Oversight Committee (Comisión de
Contraloría) of the Chamber of Deputies of Venezuela.
The Superior Tribunal for the Protection of Public Assets sentenced
Mr. Jatar Alonso, in his condition as a public official, to three and a half
years in prison for extortion and acquitted him of the charge of attempted
peddling of influences by a
public official. Mr. Jatar filed
an appeal and the Tribunal pronounced a judgment in which it reduced the sentence
to three years in prison. Mr.
Jatar then filed an appeal for protection ("amparo"), which
was disallowed and on January 31,
1995, the Tribunal ordered execution of the sentence and declared Mr. Jatar
a fugitive of justice abroad. On December 29, 1998, Mr. Jatar communicated
to the Commission his decision to give himself up to the Venezuelan authorities
as part of an agreement with the Venezuelan Ministry of Justice under which
he would be granted a presidential pardon.
On December 30, 1998 he was granted a presidential pardon on humanitarian
In particular the petition alleges violation by the Venezuelan State
of Articles 8 (Right to a Fair Trial); 11 (Right to Privacy); 24 (Right to
Equal Protection); and 25 (Right to Judicial Protection) in connection with
Articles 1(1) and 2 of the American Convention, to the detriment of Mr. Braulio
Jatar Alonso. The petitioner
lodged his petition on February 3, 1997.
The Commission began to process the petition on February 18, 1997.
The State presented its reply in which it argued that the petition
was inadmissible in accordance with Articles 46(1)(b) of the Convention and
38(1) of the Commission Regulations, inasmuch as the petition was lodged after
the deadline for presentation and that none of the allegedly violated rights
had been infringed by the State.
From its analysis of the admissibility requirements, the Commission
finds the petition inadmissible in accordance with Article 47(a) of the American
Convention, and Article 37 of its Regulations.
PROCESSING BY THE COMMISSION
On February 18, 1997 the Commission began to process the case and requested
the State for information on the facts alleged by the petitioner.
On August 18, 1997, the State requested the Commission to grant it
an extension under Article 34(5) of the Commission Regulations (hereinafter
the Regulations) and on September 10, 1997 presented its reply
dated September 5 of that year, in which it held that the petition was inadmissible
pursuant to Articles 46(1)(b) of the Convention and Article 38(1) of the Regulations.
The petitioner submitted comments to the States reply and the
Commission later received information from both parties.
The Commission received the petitioners comments together with
supplementary information on September 27, 1997; February 23, July 8, August
3, December 1, and December 17, 1998; and on February 5, April 30, September
9, and November 1, 1999; and October 17, 2000.
The State presented its comments on January 26, April 21, and October
13, 1998; and on March 11, September 20, and October 23, 1999; and August
On September 7, 2000, Mr. Braulio Jatar presented a brief dated September
1 of that year, in which he informs the Commission that he has instituted
a domestic legal proceeding for review of the illegal and arbitrary
judgment pronounced by the now-abolished Superior Tribunal for the Protection
of Public Assets in the Republic of Venezuela and requested a
stay of the instant proceeding until a final decision had been rendered on
[his] new petition before the new criminal courts in pursuance of the procedure
provided in Articles 463 et seq.
of the new Organic Code of Criminal Procedure.
POSITIONS OF THE PARTIES
The petitioner alleges that between 1989 and 1990, while serving as
ad honorem advisor to the Chair
of the Oversight Committee of the Chamber of Deputies of Venezuela and in
the course of practicing his profession as an attorney-at-law, he attended
a private meeting in the State of Florida with a prospective client by the
name of Lamaletto in the company of his partner, Dr. Aurelio Fernández Cocheso.
A video was filmed of that meeting allegedly showing a discussion over
the fee to be paid to Messrs. Jatar Alonso and Fernández Cocheso for the services
required by the prospective client.
The petitioner says that, to his surprise, upon his return to Venezuela
the contents of that video were released and he was brought upon criminal
charges as a result of persecution by powerful political figures,
who had been the subject of investigations conducted by him in the course
of carrying out his work of examining complaints of corruption as part of
his duties as ad honorem advisor.
The foregoing resulted in his prosecution in Venezuela (for acts that occurred
abroad) as a public official and in accordance with the Organic Law on Protection
of Public Assets for several offenses against the res
publica, one such being the crime of extortion.
The petitioner claims that violations of due process occurred during
the proceeding, which led to his conviction based on a recording made abroad
without his consent and on the testimony of two persons with an interest in
the outcome of the trial. He says that his right to equal protection was violated,
as was his right to be assisted by legal counsel, and he adds that he is afraid
to be in a Venezuelan prison due to the conditions therein.
The petitioner underscores that Mr. Fernández, who likewise was serving
as ad honorem advisor, was also
at the meeting that resulted in his later prosecution. The petitioner says
that no charges whatsoever were brought against the latter, nor was he prosecuted
for the same crimes as Mr. Jatar.
In connection with the foregoing, the petitioner claims that he was
tried without due guarantees by a tribunal that lacked legal competence.
He was attributed the condition of a public official, a position which
he did not hold since he was an ad honorem
advisor and was neither appointed, nor took an oath at any time as a public
official. Despite that, he was tried by the Superior Tribunal for the Protection
of Public Assets in a proceeding that characterized the lack of independence
and impartiality of the Venezuelan courts, which lack a simple and prompt
recourse designed to protect people against acts that violate their
human rights and which enable those rights to be restored.
Furthermore, Venezuela was arbitrarily imposed on him as the venue
for his trial, when the correct procedure would have been for him to be investigated
in the United States because that is where the events took place.
The petitioner alleges that the State violated his right to have his
honor and reputation respected as a result of being morally discredited, and
adds that the State of Venezuela violated his right to equal protection of
the law, as reflected by the fact that the petitioner was the only one prosecuted
and convicted for the denounced acts.
The petitioner says that he lodged his petition in a timely manner
and that he first addressed the Commission on July 31, 1996, on which occasion
his petition was not processed for failure to meet the necessary requirements.
On January 30, 1997 he presented a brief that ratified, amended, and
complemented the information contained in his original petition.
He adds that the record shows that on January 8, 1997 he addressed
the Commission and mentioned the sudden appearance of a Supreme Court
decision that disallowed his amparo
application and was supposedly
delivered on May 23, 1996.
Finally, the petitioner holds that the reply of the Government of Venezuela
missed the deadline for presentation, even with all the legally permitted
extensions being granted given that the State was notified on February
18, 1997, and the deadline for presentation of its reply was August 18, 1997.
Based on the foregoing, the petitioner requests that the State be found
The State requests that the petition be found inadmissible on grounds
that it was lodged after the deadline for presentation, the violations alleged
do not exist, and it does not state the true facts.
The State argues that the petition is inadmissible because it was submitted
to the Commission for consideration later than six months after the petitioner
was notified of the final judgment of the Superior Tribunal for the Protection
of Public Assets, which convicted the petitioner of the crime of extortion.
The State says that it has not interfered with nor obstructed the petitioners
access to the remedies under international law and that, on the contrary,
the petitioner has been at full liberty to seek them but in the instant case
has missed the deadline for doing so.
The State says that the petitioner has been tried in an absolutely
normal proceeding conducted with respect for the guarantee of due process,
which began with a noticia criminis, after which an order to proceed was issued
in accordance with the provisions contained in the Code of Criminal Procedure,
and the necessary investigations were held, at which the petitioner was present
in order to testify voluntarily.
The State adds that initially a warrant was issued for the arrest of
the petitioner for the crimes of attempted extortion, unlawful use of information
and attempted peddling of influences by a public official, which are crimes
recognized in and punished by the Organic Law on Protection of Public Assets,
in accordance with the Criminal Code and the Code of Criminal Procedure. The
petitioner appealed the arrest warrant and the Superior Tribunal for the Protection
of Public Assets withdrew the warrant for the crime of [unlawful] use of confidential
information but maintained it on all other counts.
The State says that an indictment was filed for the crimes of extortion
and peddling of influences by a public official and that the petitioner submitted
a written reply to those charges at a public hearing of the accused, which
was postponed on various occasions [
] due to the failure on the
part of the counsel for the defense to attend that proceeding.
The State adds that during the trial the petitioners defense
attorney formally recused the judge presiding over the case and the record
was referred to another bench, which pronounced judgment sentencing
citizen Braulio Jatar to serve a term of three and a half years in prison
for the crimes of Extortion and Peddling of influences by a public official.
The State says that the conviction was appealed and subsequently the
court sentenced the petitioner to serve a term of three years in prison for
being guilty of the crime of extortion [
] and acquitted citizen Braulio
Jatar of the charges brought by the representative of the Attorney Generals
office with respect to the crime of attempted peddling of influences by a
public official. The petitioner
did not exercise his right to appeal the decision to the court of cassation,
for which reason the decision was final and the court ordered its execution.
Based on the foregoing, the State holds that the trial of the petitioner
was conducted in an absolutely normal manner and in accordance
with domestic law.
As to the Tribunals lacking legal competence, the State says
that the petitioner should have indicated his disagreement with the conviction
by filing an appeal with the court of cassation and not with an international
instance, such as the Commission. The State further adds that if the courts
had been biased and took their orders from the Executive Branch the petitioner
would have been convicted of the three crimes for which the first arrest warrant
was issued or for the maximum terms possible for the crimes with which the
Office of the Attorney General charged him.
The State adds that the petitioner claims to disagree with the judgment
but did not exercise his right of appeal to the court of cassation; instead
his lawyers accepted the judgment and the petitioner found himself a fugitive
of justice abroad.
The State says that Venezuelan criminal procedure provides remedies
designed to correct all procedural irregularities, in order to ensure equal
rights and powers for the parties, and to ensure full exercise of the right
of defense in the proceeding. If the petitioner considered that any of his
rights had been impaired he should have pursued the legal remedy the law provides
in order to seek redress for the act he regarded as injurious. The petitioner
also had the possibility to file an accusation against the judge presiding
over the case if he considered that that person originated the violation of
his right to equal protection.
As to the right of defense, the State says that the petitioner was
duly represented by several attorneys who defended him at every stage and
level of the criminal process. The State points out that the remedy of amparo
exists in Venezuela, that is a prompt, brief and effective remedy for
protection of fundamental rights which enables immediate redress of infringed
interests protected by law, and that all persons have recourse to it in accordance
with the Constitution and the Organic Law on Protection of Constitutional
Rights and Guarantees.
The state argues that a criminal investigation for allegedly committing
a punishable act does not constitute a violation of the right to have ones
honor and reputation respected, since it is possible to exercise ones
right of defense and, in the case of the petitioner, the judgment that found
him guilty of the crime of extortion was accepted.
The State further mentions that the petitioner expresses his disagreement
because citizen Aurelio Fernández Concheso was not convicted and, for that
reason, considers that his right to equal protection was violated. The State
argues that the fact that a warrant was not issued for the arrest of Mr. Fernández
is not due to a violation of the right to equal protection of the law,
but to having found no irregularity that merited a criminal investigation
Competence of the Commission and formal admissibility requirements
The petitioner claims that the State has violated his rights under
Articles 1(1), 2, 8, 11, 24 and 25 of the American Convention.
The State ratified the American Convention on Human Rights on August
9, 1977. The events connected
with the complaints before the Commission occurred after the State ratified
the American Convention. The
petition was lodged with the Commission by Mr. Braulio Jatar Alonso, who has
legal competence to do so in accordance with Article 44 of the American Convention.
On that basis, the Commission is competent to take up the instant petition
under Article 44 of the American Convention and Articles 18 and 19 of its
Requirements for the admissibility of the petition
The Commission analyzes below the admissibility requirement for the
petition set down in Article 46(1)(a) of the Convention, which requires that
the remedies under domestic law shall have been pursued and exhausted in accordance
with generally recognized principles of international law, as regards the
duty of the State to provide suitable and effective domestic remedies in order
to redress violations of human rights; and, as a counterpart thereto, the
obligation of the alleged victim to exhaust the remedies under domestic law.
In the instant case the petitioner has argued that the remedies under
Venezuelan law were duly exhausted in accordance with the requirements set
down in the American Convention for lodging a case with the Commission.
The State, for its part, holds that the remedy of amparo
sought by the alleged victim was not the suitable recourse for impugning the
decision of the Superior Tribunal for the Protection of Public Assets, given
that Article 6(5) of the Organic Law on Protection of Constitutional Rights
and Guarantees provides that amparo
is not admissible when the appellant has sought remedies under the general
jurisdiction, as is the case of appeal, and that in the instant case the appropriate
remedy was an appeal to the court of cassation and not amparo.
The Commission finds that the petitioner himself addressed it on September
7, 2000, in a written communication dated September 1 of that year, requesting
a suspension of proceedings in the instant case before the Inter-American
Commission because a new domestic legal proceeding for review of judgment
was pending in Venezuela.
In connection with the foregoing, the Commission has held that the
international protection afforded by the supervisory bodies of the Convention
is of a subsidiary, reinforcing, and complementary nature. The Preamble to
the Convention refers to its nature as a mechanism for reinforcing or complementing
the protection provided by the domestic
law of the American states. It cannot, therefore, be assumed that the
Commission is an instance that may review disputes over alleged violations
that have not been taken up and exhausted by the domestic courts or, by the
same token, which are pending a decision in the respective State.
For the foregoing reasons and in light of the last communication from
the petitioner to the Commission, in
casu, the Inter-American Commission says that it has on previous occasions
found on the inadmissibility of petitions lodged without meeting the requirement
of prior exhaustion of domestic remedies and, accordingly, concludes that
it lacks competence to take cognizance of the instant case.
Based on the foregoing, the Commission abstains, since the matter is
rendered moot, from examining the other admissibility requirements provided
in the Convention.
The Commission has found that the petition does not meet the requirement
provided in Article 46(1)(a) of the American Convention and that the information
advanced by the parties does not make it possible to apply the exceptions
provided for in Article 46(2) thereof.
In consequence, the Commission concludes that the petition is inadmissible
in accordance with Article 47(a) of the Convention.
Based on the preceding factual and legal arguments,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the
instant case inadmissible.
2. To notify the
petitioner and the State of this decision; and
3. To publish this
decision and to include it in its Annual Report to the OAS General Assembly.
Done and signed in Washington, D.C., on the 19th day of the month of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
Article 196 of the Venezuelan Criminal Code provides in connection with
the crime of extortion (Title III, Offenses against the res
publica, Chapter II, Extortion) that:
any public official who, abusing his position, compels someone to give or to promise either to the official himself or to a third party a sum of money or benefit or bribe, shall be sentenced to eighteen months to five years in prison. If the sum of money or bribe given or promised is of minor value, the term of imprisonment shall be from three to twenty-one months.
The petitioner makes reference to Article 4 (1) and (2) of the Venezuelan
Criminal Code, which provides:
following are liable to prosecution in Venezuela and shall be punished
in accordance with Venezuelan criminal law:
Venezuelans in a foreign country who are accused of treason against
the Republic and those who commit acts against other Venezuelans that
are punishable under that countrys laws.
Foreign subjects or citizens, who commit a crime in a foreign country
against the security of the Republic or against a national thereof.
both cases it is required that the criminal suspect have entered the territory
of the Republic and a complaint filed against him by the injured party,
or by the Office of the Attorney General in cases of treason or an offense
against the security of Venezuela.
They say that in the instant case, on July 29, 1994, the court of first
instance pronounced judgment against which the petitioner appealed; A
decision was issued on that appeal by the Superior Tribunal for the Protection
of Public Assets on January 31, 1995, and on March 1, 1995, Mr. Jatar
filed an appeal of amparo for
protection of his constitutional rights with the Venezuela Court of Cassation
in criminal matters.
In respect of this point it should be mentioned that at the time of ratifying
the American Convention Venezuela made a reservation as regards Article
8(1), insofar as Article 60(5) of the Constitution of the Republic of
Venezuela establishes that persons accused of an offense against the res
publica may be tried in absentia,
with the guarantees and in the manner prescribed by law. Such a possibility
is not provided for in the aforementioned Article 8.
With the exceptions provided in Article 46(2) of the American Convention.
Article 6 of the Organic Law on Protection of Constitutional Rights and
Guarantees, provides that:
action of amparo shall not be admitted:
When the injured party has opted to seek redress in the general
jurisdiction or made use of preexisting judicial means
See: Resolution 29/88, Case No. 9260, Jamaica, September 14, 1988; Report
Case No. 11.673, Argentina, October 15, 1996;
and Report No. 88/99, Case No. 12.013, Paraguay, September 27, 1999.
 In this regard see, inter alia, Report 73/99, Case No. 11.701, Mexico, May 4, 1999; Report 24/99, Case No. 11.812, Mexico, March 9, 1999; and Report 82/98, Case No. 11.703, Venezuela, September 28, 1998.