Oscar José Blanco Romero v. Venezuela, Case 12.256, Report No. 90/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 323 (2001).
JOSÉ BLANCO ROMERO
On February 3, 2000, the Inter-American Commission on Human Rights
(hereinafter the Inter-American Commission or the IACHR)
received a complaint submitted by the Comité de Familiares de Víctimas
de los Sucesos de Febrero-Marzo de 1989 (COFAVIC) and the Center for Justice
and International Law (CEJIL) (the petitioners) alleging the international
responsibility of the Venezuelan State (the State) for the illegal
detention, incommunicado detention, and forced disappearance of Oscar José
Blanco Romero. The petitioners
argue that the facts alleged constitute the violation of several provisions
of the American Convention on Human Rights (hereinafter American Convention),
such as the general duty to respect the rights (Article 1(1)); the right to
life (Article 4); the right to humane treatment (Article 5); the right to
personal liberty (Article 7); the right to a fair trial (Article 8(1)), and
the right to effective judicial protection (Article 25); and Article 1 of
the Inter-American Convention on Forced Disappearance of Persons.
The State is of the view that domestic remedies have not been exhausted,
considering that the facts are being investigated by the Public Ministry and
the Office of the Human Rights Ombudsman, together with the Venezuelan courts;
that habeas corpus is not the adequate means to investigate the facts alleged;
and that the duty to investigate is an obligation of means, not of results.
Accordingly, Venezuela argues, there is no violation of the duty to investigate
when the desired result is not produced.
Without pre-judging on the merits, the IACHR concludes in this report
that the case is admissible, as it meets the requirements set forth in Articles
46 and 47 of the American Convention.
Therefore, the Inter-American Commission decides to notify the parties
of the decision and to continue with the analysis of the merits in relation
to the alleged violation of Articles 1(1), 4, 5, 7, 8(1), and 25 of the American
Convention, and Article 1 of the Inter-American Convention on Forced Disappearance
PROCESSING BEFORE THE INTER-AMERICAN COMMISSION
The petition was submitted on February 3, 2000, and transmitted to
the Venezuelan State on March 15, 2000, as petition number 12.256; the State
was asked to provide information on the petition.
The IACHR sent a note reiterating the request for information to the
Venezuelan State on July 19, 2000, giving it 30 days to respond.
The State presented its observations on August 24, 2000; these were
transmitted to the petitioners on September 8, 2000.
The petitioners presented their observations on October 25, 2000. The respective additional observations to the States
response were sent by the IACHR on December 5, 2000.
The Inter-American Commission held a hearing on the case with both
parties on February 27, 2001, during its 110th session.
On March 23, 2001, the petitioners sent the IACHR additional information,
which was transmitted to the Venezuelan government on May 9, 2000.
On August 20, 2000, the Venezuelan State forwarded the report of the
Public Ministry of Venezuela on case No. 12.307, José Francisco Rivas Fernández
(who was disappeared in the state of Vargas), which made reference to the
status of the case involving Oscar José Blanco Romero.
POSITIONS OF THE PARTIES ON ADMISSIBILITY
On December 15, 1999, when the referendum was held approving the draft
of the Constitution, in both the state of Vargas and elsewhere in Venezuela,
the magnitude of the rains was an issue of concern. During those days, Venezuela experienced the consequences of
the worst natural disaster in its contemporary history.
In these circumstances, the actions of a considerable share of the
state agents in efforts to re-establish the public order necessary for safeguarding
the lives and security of persons presumably resulted in several human rights
The petitioners allege that on December 21, 1999, at 2:00 p.m., a group
of paratroopers commanded by (Army) Lt. Federico Ventura Infante, attached
to Company 422 of Col. Antonio Nicolás Paratrooper Infantry Battalion,
arrived at the residence of Oscar José Blanco, where it tried to knock down
the door of the residence. Mr.
Blanco Romero, who was in the company of his wife, Mrs. Alejandra Iriarte
de Blanco, his mother-in-law, Mrs. Vitalina Mundaray, and his four children,
Aleoscar Russeth Blanco Iriarte, 12 years old, Eduardo José Romero Blanco,
7 years old, Oscar Alejandro Blanco, 6 years old, and Orailis Del Valle Blanco
Romero, 2 years old, went out to meet them and open the door for them, at
which time the soldiers entered the house and began to break the furniture,
and even to shoot at the house. Immediately
thereafter, Mr. Blanco was beaten and detained by the members of the military. Then, at approximately 5:00 p.m., members of the Bureau of
Intelligence and Preventive Services (DISIP: Dirección de Servicios de
Inteligencia y Prevención) arrived; Mr. Oscar Blanco Romero was turned
over to them. When Mrs. Alejandra
Iriarte de Blanco asked the members of the police where her husband would
be taken, they did not respond.
Beginning on December 23, 1999, Mrs. Iriarte de Blanco sought information
as to the whereabouts of her husband from Garrison 58 of the National Guard,
in the state of Vargas, from the DISIP paratrooper operations stationed in
the state of Vargas, from the Maiquetía International Airport, and from the
Helicoide, the base of DISIP operations in Caracas; to this day, she has yet
to find her husbands name on any official list.
Given the circumstances and Mrs. de Blancos desperation, she
reported the disappearance of Mr. Oscar José Blanco Romero to the Senior Prosecutor
of Vargas and to the Technical Judicial Police Corps.
On January 24, 2000, Mrs. Alejandra Iriarte de Blanco ratified the
complaint before the Public Ministry of Venezuela, and on January 28, 2000,
she filed a writ of habeas corpus before the Fifth Court of Review of the Criminal Judicial
Circuit for the State of Vargas.
On January 29, 2000, Division General Lucas Enrique Rincón Romero,
General Commander of the Army, recognized the detention of Mr. Blanco by a
commission under the charge of (Army) Lt. Federico José Ventura Infante, of
the 422nd Paratrooper Infantry Battalion Col. Antonio Nicolás Briceño,
indicating that the detainee was handed over immediately to a DISIP commission
under the command of a Commissar (Comisario), dispatched to the site
by (Army) Lt. Col. Francisco Antonio Briceño Araújo, Unit Commander.
On January 29, 2000, (Army) Captain Eliécer Otaiza Castillo, Director
General of the Bureau of Intelligence and Preventive Services (DISIP), answered
officially to the Fifth Court of the State of Vargas that Mr. Blanco Romero
had not been detained by the DISIP.
On February 1, 2000, the Fifth Court of the State of Vargas declared
that there was no subject matter on which to decide in relation to the writ
of habeas corpus filed by Mrs. Alejandra
Iriarte de Blanco.
On February 10, 2000, the Court of Appeals for the Criminal Judicial
Circuit of the Judicial District for the State of Vargas affirmed the decision
of the Fifth Court of Review by which it declared that it did not have any
subject matter on which to decide in relation to the writ of habeas corpus
filed on behalf of Mr. Blanco Romero.
In relation to the exhaustion of domestic remedies, in the case of
the forced disappearance of Oscar Blanco Romero, the petitioners requested
the opinion of Mr. Jesús María Casal, expert in Venezuelan constitutional
law, who noted as follows:
Scope of protection of habeas corpus under Venezuelan law
our legal system, habeas corpus, a term used by Article 43 of the Organic
Law on the Protection (Amparo) of Constitutional Rights and Guarantees
(hereinafter the Organic Law on Amparo), and belonging to our legal
tradition, is an expression of the right of amparo
provided for in Article 27 of the Constitution. Its specificity lies first in its purpose:
liberty and personal security.
1999 Constitution corroborated the applicability of the protection, or amparo,
of personal liberty, or habeas corpus,
to the forced disappearance of persons.
The Constitution, right after enshrining the right to personal liberty,
prohibits and punishes the forced disappearance of persons, consistent with
the international human rights instruments.
Organic Law on Amparo provides that against any decision that resolves
an amparo action in the first instance,
one may bring an appeal, and it provides for a compulsory consultation (consulta)
if there is no appeal. One may
not pursue a cassation remedy to oppose an appellate decision on an amparo matter.
has been suggested that against a decision denying a habeas corpus motion, handed down on appeal from the amparo
proceeding that one must exercise the remedy of review provided
for at Article 336(10) of the Constitution, prior to having recourse to the
Inter-American Commission on Human Rights. This thesis has no basis whatsoever
in the Venezuelan constitutional order, nor does it find support in the inter-American
case law on the rule of exhaustion of domestic remedies, given that:
Article 336(10) of the 1999 Constitution does not provide a remedy;
it provides for a power of the Constitutional Chamber that entails the possibility
of reviewing firm amparo judgments
or decisions of other Venezuelan courts judgments involving constitutional
power of the Constitutional Chamber may be exercised upon the initiative of
the person affected, but it may also be applied sua
sponte, or at the request of a third person, as has been declared by the
constitutional case-law. As it
is not a remedy, no term is fixed for the eventual presentation of the request
by an interested person.
Most important, however, for the purposes of resolving the issue posed,
is that the Constitutional Chamber, in numerous judgments, has had the opportunity
to clarify the scope of this review power, and has held uniformly and repeatedly
that its exercise is exceptional and discretional.
Moreover, it has stated that a private person who requests of that
Chamber that it review any amparo judgment cannot invoke any right whatsoever as a basis for
admitting the review. Admitting
the review is a discretional power of the Constitutional Chamber, in response
to which a person cannot invoke any constitutional right.
The foregoing is borne out by the firm position of the Constitutional
Chamber according to which it is not obligated to render decisions on all
the requests for review of amparo
judgments. It may selectively choose the cases that seem relevant,
in which it allows the review procedure, without there being a duty to set
forth the reasoning of its pronouncements, even when it rejects outright an
application for review.
elements make the review a sui generis
mechanism without the propensity to place in the hands of the private person
an instrument that would allow him or her to demand justice before a court;
rather, it is geared to empowering the Constitutional Chamber to establish
binding criteria on the interpretation of the constitutional provisions, thereby
ensuring uniformity of criteria.
just a few cases, those which are able to awaken the sensitivity of the justices
of the Constitutional Chamber, the review is admitted--in practice almost
never--which does not mean that the judgment will definitely be voided.
implies that the first and second instance of amparo, or habeas corpus,
is the procedural remedy that guarantees the private person the possibility
of demanding the cessation of the violations of his or her constitutional
rights, as the Judiciary is obligated to restore, through this process, the
situations infringed by the violations of such rights.
While the review is a completely exceptional mechanism, which only
operates when it is deemed advisable to do so by the justices of the Constitutional
Chamber, in the use of their discretional power of selection.
rule of exhaustion of domestic remedies cannot be applied to a procedural
mechanism which, in summary, has the following characteristics:
It is not a remedy or an action available to the victim of human rights
violations; it is a discretional power of the Constitutional Chamber, which
may be exercised sua sponte, or
at the request of an interested person, with no term of preclusion.
One who requests the review of an amparo
judgment has no right to obtain a pronouncement as to its admissibility or
The review is not a second appeal (third instance) of an amparo judgment; to the contrary, review applies to amparo
judgments or judgments of constitutional review that are definitely firm,
and that have the authority of res judicata. Hence, it is a mechanism that is not only special, but exceptional,
and it is up to the Constitutional Chamber to determine, selectively, whether
to admit or process the reviews in those cases in which they deem it pertinent.
With the filing of the habeas
corpus remedy before the Fifth Circuit Court of Review of the State of
Vargas, on January 28, 2000, which declared on February 1 that there was no
subject matter on which to decide, and the affirmation of this decision on
February 10, 2000, by the Court of Appeals of the Criminal Judicial Circuit
of the Judicial District for the State of Vargas, the petitioners consider
that they have exhausted domestic remedies in Venezuela.
The petitioners argue that the facts alleged constitute a violation
by the Venezuelan State of several provisions of the American Convention on
Human Rights, such as the right to respect and ensure the rights (Article
1(1)), the right to life (Article 4), the right to humane treatment (Article
5), the right to personal liberty (Article 7), the rights to a fair trial
and to judicial protection (Articles 8(1) and 25), and Article 1 of the Inter-American
Convention on Forced Disappearance of Persons.
The Venezuelan State considers that domestic remedies have not been
exhausted, given that at present actions are being taken and investigations
are under way by the Public Ministry and the Office of the Human Rights Ombudsman,
together with the Venezuelan courts, aimed at clarifying the events that occurred
in the state of Vargas.
The criminal courts that had the habeas
corpus actions before them requested information from the security agencies
that indicated that they had the persons detained.
In all these cases, both the Ministry of Defense and the National Guard
and DISIP reported that the citizens with respect to whom the writs of habeas corpus were filed were not detained under their orders.
In the face of this information supplied by the security agencies,
the criminal courts--both the Criminal Court of Review and the Criminal Courts
of Appeals--were of the view that the procedural requirements for the habeas
corpus action to lie were not met, accordingly, this was not the adequate
means for effectively investigating the facts alleged, as the proper course
of action was to begin a formal, regular investigation, following the guidelines
and rules established in the Organic Code of Criminal Procedure, so as to
determine precisely the real characteristics of the deed, and to identify
the perpetrators and participants. Accordingly,
the Senior Prosecutor for the state of Vargas was told to order immediately
that the respective investigations begin, which means that with said decision,
domestic remedies were not exhausted, but that it was necessary to pursue
those indicated by the court.
The Venezuelan State mentions that the Court has established that the
legal duty of the states is to investigate human rights violations that have
taken place in its jurisdiction, noting that this is an obligation of means,
but not of results, thus it is not breached when the desired result is not
attained, and that the violation of this duty actually occurs when the state
apparatus acts so as to impede an adequate investigation into the facts, such
that the violation remains in total impunity.
It also notes that with respect to the decision to deny the writ of
habeas corpus, review through the
Constitutional Chamber is proper; the Constitutional Chamber which may declare
the nullity of the decision for a new habeas
corpus proceeding to begin, as has occurred in the case of the disappearance
of Mr. Monasterios,
in which the Constitutional Chamber first declared admissible the amparo filed by the Human Rights Ombudsman for the Caracas Metropolitan
Area against the judicial decision denying the habeas
corpus, in a case related to an alleged forced disappearance.
The Chamber adduced that the two appeals allowed in the case of an
amparo action had already been exhausted,
thus there was no place for a new constitutional amparo:
the right to prompt and effective judicial protection of constitutional
rights should have been considered satisfied (judgment of April 25, 2000).
Yet later the same Constitutional Chamber decided to exercise the exceptional
and discretional power of review provided for at Article 336(10).
The State further notes that at the initiative of the Public Ministry,
one can accede to a constitutional review and then initiate criminal actions
for the purpose of clarifying the facts and determining the whereabouts of
the disappeared person; and that so long as the person has not been found
alive and the corpse has not been found, the investigation has not concluded,
and, accordingly, domestic remedies have not been exhausted.
Competence ratione personae,
ratione materiae, ratione temporis,
loci of the Inter-American Commission
The petitioners are authorized by Article 44 of the American Convention
to submit complaints to the IACHR. Those
complaints name as alleged victims individuals with respect to whom Venezuela
undertook to respect and ensure the rights enshrined in the Convention.
As regards the State, the Commission observes that Venezuela is a state
party to the American Convention, having ratified it on August 9, 1977.
In addition, the IACHR observes that as regards passive competence
ratione personae, it is a general
principle of international law that the State must answer for the acts of
all its organs, including those of its Judiciary. Accordingly, the Commission
is competent to take up this petition.
The Commission is competent ratione
loci to take cognizance of this petition insofar as it alleges that rights
protected in the American Convention were violated in the territory of a state
party to that Convention.
The Commission is competent ratione
temporis, as the facts set forth in the petition are alleged to have taken
place when the obligation to respect and ensure the rights established in
the Convention were already in force for the Venezuelan State.
With respect to the arguments on possible violations of the Inter-American
Convention on Forced Disappearance of Persons, the Commission observes that
Venezuela ratified it on January 19, 1999.
Consequently, the facts that are the subject matter of this case are
alleged to have taken place when this international instrument was in force
Finally, the Commission has competence ratione
materiae because the petition alleges violations of human rights protected
in the American Convention and in the Inter-American Convention on Forced
Disappearance of Persons.
Other requirements for the admissibility
of the petition
Exhaustion of domestic remedies
The issue of exhaustion of domestic remedies is addressed in Article
46(1)(a) and (b) of the American Convention.
The petitioners consider that domestic remedies were exhausted in Venezuela
with the filing of the writ of habeas
corpus on January 28, 2000, before the Fifth Circuit Court of the State
of Vargas--which decided on February 1, 2000, that there was no subject matter
on which to decide upon--and the affirmation of this decision on February
10, 2000, by the Court of Appeals for the Criminal Judicial Circuit of the
Judicial District for the State of Vargas.
The Venezuelan State alleged failure to exhaust domestic remedies on
August 24, 2000, considering that the petition before us is the subject of
an active and ongoing investigation, through the constant holding of proceedings
necessary to clear up the facts, by the Public Ministry and the Office of
the Human Rights Ombudsman, together with the Venezuelan courts.
In the instant case, the Commission observes that the writ of habeas
corpus was rejected in the first instance on February 1, 2000, and that
this decision was affirmed by the Court of Appeals on February 10, 2001.
While it is true that the State asserts that the victims next-of-kin
have yet to exhaust the remedy of review, in the opinion of the Commission
this remedy is not adequate for determining the whereabouts of the victim
in the case of a forced disappearance. As the Honorable Court has pointed out from its first contentious
corpus would be the normal means of finding a person presumably detained by
the authorities, of ascertaining whether he is legally detained and, given
the case, of obtaining his liberty.
The Venezuelan State also argues that Senior Prosecutor for the State
of Vargas was told to immediately order that the respective inquiries begin,
which means that with that decision, domestic remedies were not exhausted,
but rather it was necessary to pursue those indicated by the court.
The Commission attributes importance to the work being done by the State to
identify the persons responsible for the facts that are the subject matter
of this case, since, in effect, a criminal trial is the appropriate proceeding
for this purpose. Nonetheless,
as the Court has indicated: The purpose of habeas corpus is not only
to guarantee personal liberty and humane treatment, but also to prevent disappearance
or failure to determine the place of detention, and, ultimately, to ensure
the right to life.
Bearing in mind that the alleged victim disappeared December 21, 1999,
the Commission considers that the State has had more than reasonable time
to determine the whereabouts of Oscar José Blanco Romero. In addition, the
Commission must state that once the habeas
corpus is denied in the first instance and on appeal, by the Judiciary,
domestic remedies have been fully exhausted.
As indicated by Article 10 of the Inter-American Convention on Forced
Disappearance of Persons, to which Venezuela is a state party, the right
[of a victim] to expeditious and effective judicial procedures and recourse
shall be retained as a means of determining the whereabouts or state of health
of a person who has been deprived of freedom, or of identifying the official
who ordered or carried out such deprivation of freedom.
One year and nine months have passed, and the alleged victim remains
With respect to what the State has indicated to the effect that the
next-of-kin must exhaust the criminal proceeding under way, the Commission
must reiterate its doctrine according to which:
the case of crimes of public action, and even in those which may be prosecuted
by a private actor, it is not valid to demand exhaustion of domestic remedies
of the victim or the victims relatives, for the state has a duty to
maintain public order, and therefore it has an obligation to set the criminal
law system into motion and to process the matter until the end. As the Inter-American Court has stated, the obligation to investigate
must have an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that depends upon the initiative
of the victim or his family or upon their offer of proof, without an effective
search for the truth by the government.
preceding statement is confirmed in those procedural regimes that deny the
victim or victims relatives any standing, as the state monopolizes the
ability to press criminal charges. And where such standing is provided for,
its exercise is not compulsory, but optional for the person who has suffered
harm, and does not take the place of state action.
Accordingly, the Commission considers that the petitioners exhausted
domestic remedies with the decision of the Court of Appeals denying the writ
of habeas corpus.
With respect to the States cite to the case-law of the Court
according to which the duty to investigate is one of means, but not
of results, accordingly there is no violation when it does not produce the
desired result, it should be noted that the Inter-American Court has
also stated that In certain circumstances, it may be difficult to investigate
acts that violate an individuals rights.... Nevertheless, [the investigation]
must be undertaken in a serious manner and not as a mere formality preordained
to be ineffective.
Time period for presentation
The petition was submitted on February 3, 2000, within the six-month
period established by Article 46(1)(b) of the American Convention, thus that
requirement has also been met.
Duplication of procedures and res
The record in this case contains no information whatsoever that might
lead to a determination that this matter is pending before another international
organization or that it has been previously decided by the Inter-American
Commission. Therefore, the IACHR concludes that the objections provided
for at Article 46(1)(d) and Article 47(d) of the American Convention do not
Characterization of the facts alleged
The IACHR considers that the facts alleged, if true, tend to establish
violations of the rights guaranteed at Articles 1(1), 4, 5, 7, 8(1), and 25
of the American Convention, and Article 1 of the Inter-American Convention
on Forced Disappearance of Persons.
The Inter-American Commission concludes that it is competent to take
cognizance of the merits of this case, and that the petition is admissible
under Articles 46 and 47 of the American Convention.
Based on the arguments of fact and of law set forth above, and without
prejudging on the merits,
THE INTER-AMERICAN COMMISSION ON
To declare this case admissible with respect of the alleged violations
of Articles 1(1), 4, 5, 7, 8(1), and 25 of the American Convention, and Article
1 of the Inter-American Convention on Forced Disappearance of Persons.
To notify the parties of this decision.
To continue with the analysis of the merits.
To publish this decision and include it in its Annual Report for the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., October 10, 2001.
(Signed): Claudio Grossman,
President; Juan E. Méndez, First Vice President; Marta Altolaguirre, Second
Vice President; Robert K. Goldman, Peter Laurie, Julio Prado Vallejo, Hélio
Judgment of the Constitutional Court of the Supreme Court of Venezuela,
of August 14, 2000.
I/A Court HR, Case of Velásquez Rodríguez, Judgment of July 29, 1988,
Series C, No. 4, para. 65.
I/A Court HR, Case of Castillo Páez, Judgment on the merits, para. 83.
I/A Court HR, Case of Velásquez Rodríguez, Judgment of July 29, 1988,
Annual Report 1997, Case 11.218, Arges Sequeira Mangas v. Republic of
Nicaragua, para. 97.
I/A Court HR, Case of Velásquez Rodríguez, Judgment of July 29, 1988,