José Francisco Rivas Fernández v. Venezuela, Case 12.307, Report No. 92/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 343 (2001).
On July 5, 2000, the Inter-American Commission on Human Rights (hereinafter
the Inter-American Commission or the IACHR) received
a complaint submitted by the Vicaría Episcopal de Derechos Humanos
of the Archdiocese of Caracas (Archdiocesan Vicariate for Human Rights) and
the Center for Justice and International Law (CEJIL) (the petitioners),
in which it is alleged that the Venezuelan State (the State) is
responsible for the illegal detention, incommunicado confinement, and forced
disappearance of José Francisco Rivas Fernández. The petitioners argue that the facts alleged constitute violations
of several provisions of the American Convention on Human Rights (hereinafter
the American Convention), such as the general obligation 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
The State is of the view that domestic remedies have not been exhausted,
since the facts are being investigated by the Public Ministry and the Office
of the Human Rights Ombudsman (Defensoría del Pueblo) along with the
Venezuelan courts; that the habeas corpus remedy is not the adequate means to investigate the
facts alleged; and that the investigation is an obligation of means and not
of results, such that it is not violated when the desired results are not
Without prejudging on the merits of the matter, the IACHR concludes
in this report that the case is admissible, as it meets the requirements provided
for at Articles 46 and 47 of the American Convention. Accordingly, the Inter-American
Commission decides to notify the parties of the decision and to continue to
analyze the merits issues regarding the alleged violations of Articles 1(1),
4, 5, 7, 8(1), and 25 of the American Convention, as well as Article 1 of
the Inter-American Convention on Forced Disappearance of Persons.
PROCESSING BEFORE THE INTER-AMERICAN COMMISSION
The petition was submitted July 5, 2000, and forwarded to the Venezuelan
State on July 12, 2000, as petition number 12.307, with a request for information.
The State presented its observations on August 27, 2000; these were
forwarded to the petitioners on September 8, 2000. On October 13, 2000, the
petitioners requested an extension for submitting their observations on the
answer by the Venezuelan State; the Commission granted them 30 days counted
from October 27, 2000. The petitioners submitted their observations on November
28, 2000. The additional observations to the States answer were sent
by the Commission to the State 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,
the petitioners sent the IACHR additional information, which was forwarded
to the Government of Venezuela on May 9, 2001. The Venezuelan State sent in
the report by the Public Ministry of Venezuela on August 20, 2001.
THE PARTIES POSITIONS ON ADMISSIBILITY
On December 15, 1999, the date of the referendum adopting the draft
resolution of the Constitution, both in the state of Vargas and in other areas
of the country, the magnitude of the rains was a matter of concern.
During those days Venezuela experienced the consequences of the worst
natural disaster of its contemporary history.
Under these circumstances, the action of a large number of state agents
in the work of re-establishing the public order necessary for safeguarding
the lives and security of persons allegedly resulted in several human rights
The petitioners allege that on December 21, 1999, at approximately
7:30 p.m., José Francisco Rivas Fernández, 24 years of age, was seated at
the door of the offices of the Acción Democrática (AD) political party,
located in Carabelleda, state of Vargas, where some families who had lost
their homes in the disaster, including his own, had taken shelter. At 7:30
p.m. a curfew went into effect that was not officially decreed
by the Government of Venezuela, in which the troops of the Paratrooper Battalion
began blowing whistles to indicate that everyone should take shelter in their
Ten minutes after the whistles were blown, the troops returned and
began to shoot into the air. José Francisco Rivas Fernández remained seated
at the door. On seeing him, the soldiers asked if he had seen anyone running,
and he answered that he had not. Immediately,
a sergeant by the last name of Rondón, who directed the military group, accompanied
by approximately seven men, told him in a threatening tone that they were
not hunting, threw him to the ground, and began kicking him.
Later, they took off his shoes and, using the shoelaces, they tied
his hands behind his back, while the sergeant was saying kill him, kill
him, hes a scabies-infested dog, hes a criminal,
and hit him hard while they continued beating him.
At that moment, in the face of such circumstances, the victims
parents intervened, as did others who were at that shelter, who asked that
they not mistreat him, and that he be released; yet the members of the military
did not stop pursuing their objective, and they took him away, while they
told José Rivass parents, if you want to rescue him, then rescue
him later, when hes been swallowed up by the darkness.
One witness attests to having observed when he was taken by a military
commission to a sector called Quebrada Seca, while being severely beaten,
along with two others who were also detained.
On December 22, when the victims parents inquired about their
son, the sergeant by the last name of Rondón, who had detained him, told them
that he had been turned over to the Bureau of Intelligence and Prevention
Services (DISIP: Dirección de Servicios de Inteligencia y Prevención).
The victims next-of-kin have searched for him in different places
in the state of Vargas, and even in the Federal District, yet have had no
On January 28, 2000, a writ of habeas
corpus was filed by attorney Celia Méndez, representative of the Vicaría
Episcopal de Derechos Humanos of the Archdiocese of Caracas, in keeping
with Article 27 of the Constitution of the Bolivarian Republic of Venezuela,
before the Sixth Judge of Control of the Criminal Judicial Circuit for the
State of Vargas.
On February 11, 2000, the Sixth Court of Control of the State of Vargas
declared that there was no subject matter on which to decide. Its decision
was based on the report by Army Captain Eliécer Otaiza Castillo, Director
General of the DISIP, in which he reports that ... based on a review
of the files and incident reports of these services, the detention of citizen
José Francisco Rivas Fernández is not reflected.
On February 17, 2000, the Court of Appeals of the Criminal Judicial
Circuit of the Judicial District of the State of Vargas affirmed the decision
of the Sixth Court of Control by which it declared that there was no subject
matter on which to decide in relation to the writ of habeas
corpus filed on behalf of José Francisco Rivas Fernández.
In relation to the exhaustion of domestic remedies in the case of the
forced disappearance of José Francisco Rivas, the petitioners sought the opinion
of Mr. Jesús María Casal, expert in Venezuelan constitutional law, who indicated
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 of 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 each state 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 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, and ratione
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 is competent 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 Sixth Circuit Court of the State
of Vargas--which decided that there was no subject matter on which to decide
upon--and the affirmation of this decision on February 17, 2000, by the Court
of Appeals for the Criminal Judicial Circuit of the Judicial District of 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 11, 2000, and that
this decision was affirmed by the Court of Appeals on February 17, 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 cases:
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 José Francisco Rivas Fernández.
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
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 submission
The petition was submitted on July 5, 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 HUMAN RIGHTS,
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.
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 Bicudo, Commissioners.
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,