CONSIDERATION
OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION
Initial
reports of States parties due in 1992
Addendum
VENEZUELA
[8 July
1998]
1. Venezuela,
as a State party to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, hereby submits for consideration
by the Committee against Torture its initial report on the measures
taken to give effect to its undertakings under the Convention, in
accordance with article 19 of the Convention.
2. Civil
and political rights in general, which naturally include the right
not to be tortured and the right to physical and moral security, are
recognized by the Venezuelan State in respect of all inhabitants of
the territory of the Republic, without discrimination of any kind.
The Constitution establishes fundamental rights and freedoms and states
that they apply "to all who live in the Republic", thereby incorporating
the basic principles of non-discrimination and the universality of
rights.
3. The Convention
against Torture, like other international human rights instruments,
has been incorporated into current domestic legislation by virtue
of its adoption by Congress as an Act of the Republic and due ratification.
Thus the rights it embodies are considered "self-executing" and may
be invoked before the judicial and administrative authorities, who
can and must apply such instruments even though a given domestic Act
might not expand on their principles.
4. It is
recognized in Venezuela's Constitution, legislation and case law that
international human rights standards constitute a body of minimum
guarantees that may in no way, be restricted or reduced on the grounds
that they are not recognized or are only partially recognized by a
given instrument or Act.
5. A further
basic principle is that the purpose of human rights law is to protect,
and that its scope should always be interpreted in the light of the
principles of pro homine and pro libertate. In this
regard, article 50 of the Constitution gives a pro homine interpretation
in the following terms: "The enunciation of rights and guarantees
contained in this Constitution shall not be construed as a denial
of others which, being inherent in the human person, are not expressly
mentioned herein." This provision is interpreted as meaning that "all
the other rights inherent in the human person", that is to say, including
those contained in the international human rights instruments ratified
by Venezuela, have constitutional rank.
6. The human
rights enshrined in the Constitution and those "inherent in the human
person" are protected by various guarantees contained in the Constitution
itself: first, the guarantee of law, that is to say, its content can
only be modified by a legally valid act of the national legislature;
second, the guarantee of the invalidity of acts that reduce the rights
established in the Constitution; third, the guarantee of the criminal,
civil, administrative and disciplinary responsibility of officials
who violate constitutional rights; and lastly, the guarantee of judicial
protection through the remedy of amparo.
7. Institutions
for the promotion and defence of human rights, of various kinds, origins,
aims and scope, have been established in Venezuela. In addition to
non-governmental organizations (NGOs) - some of them international
in their scope and activities, others dealing with purely domestic
matters, a number of groups, foundations, university chairs, regional
commissions and official institutions (independent or otherwise) have
also been set up. All these organizations and programmes enjoy freedom
of action and the respect and consideration of the State and the Government.
8. Venezuela
maintains close contact and cooperation with the international human
rights monitoring and protection bodies in meeting its obligations
to prevent torture and punish it as a crime. Mr. Nigel S. Rodley,
the Special Rapporteur on torture (Commission on Human Rights), visited
Venezuela from 7 to 16 June 1996, and was able, as he put it in his
report, "to meet his overall objective of gathering first-hand oral
and written information from a wide number of persons to enable him
to make a better assessment of the situation as regards the use of
torture" (E/CN.4/1997/7/Add.3, para. 1).
9. During
his visit, the Special Rapporteur was given extensive cooperation
in carrying out his task. He met with the highest authorities in the
country, the Attorney-General and other officials of the Attorney-General's
Office, the President of the Supreme Court of Justice, the President
and Vice-President of the Judicature Council, the Director of Prisons,
the President and members of the Sub-Commission on Human Rights and
Constitutional Guarantees of the Chamber of Deputies, the Director-General
of the Investigation Unit of the Judicial Police, the Director of
the Institute of Forensic Medicine, the Director-General of the Metropolitan
Police, the Director-General of Intelligence and Prevention Services,
and the Commander-in-Chief of the National Guard. He also met with
persons claiming to have been tortured and/or their relatives and
with representatives of NGOs. And he visited cities in the provinces,
prisons, etc.
10. After
his visit, the Special Rapporteur produced a report and made a number
of recommendations. When the Government of Venezuela received the
report and the Special Rapporteur's recommendations, it began to take
the necessary measures to put them into effect. A copy of Venezuela's
response to the Special Rapporteur's recommendations, giving details
of the measures taken by the State to prevent and punish torture,
is attached (annex 1)*.
11. Venezuela
has taken various legislative, administrative and judicial measures
to prevent the use of torture.
* The annexes
are available for consultation in the files of the secretariat.
Legislative
measures
12. According
to article 60, paragraph 3, of the Constitution, "No one may be held
incommunicado or subjected to torture or to other procedures which
cause physical or moral suffering ... inflicted on a person subjected
to restriction of his liberty".
13. According
to article 6, paragraph 2 of the Prison Regime Act, "Prisoners shall
not be subjected to any kind of degrading or humiliating treatment
or to correctional measures other than those permitted under the law".
14. According
to article 10 of the Code of Penal Procedure "During criminal proceedings,
all persons shall be treated with due respect for their inherent dignity
as human beings and for the rights deriving therefrom, and may demand
of the authority requiring them to attend the right to be accompanied
by a lawyer of their choosing". Article 122, which lists the rights
of the accused, establishes in paragraph 10 the right "Not to be subjected
to torture or other cruel or inhuman treatment or treatment degrading
to his personal dignity" and, in paragraph 11, the right "Not to be
subjected to techniques or methods that affect his free will, even
with his consent" (annex 2).
15. Although
the Penal Code does not clearly define the offence of torture, it
does stipulate the following penalties in article 182: "Any public
official who, while responsible for the custody or transfer of any
detained or convicted person, commits arbitrary acts against that
person or subjects him to acts not authorized under the relevant regulations
shall be liable to between 15 days' and 20 months' imprisonment. The
same penalty shall apply to any public official who, having authority
over such a person by virtue of his office, commits any such acts
against him". Article 182 also recognizes as an offence, punishable
by a sentence of three to six years, the infliction of any suffering,
offences against human dignity, harassment, torture or physical or
moral attacks on a detained person by his jailers or warders or by
anyone ordering such acts, in violation of the individual rights recognized
in article 60, paragraph 3, of the Constitution. Further, according
to article 183, if in such cases the public official acted in pursuit
of his own private interest, the penalty shall be increased by one
sixth.
16. Also
in the context of legislative measures, we would recall that Venezuela
is a State party to: the International Covenant on Civil and Political
Rights, which prohibits torture under article 7; the American Convention
on Human Rights, which prohibits torture under article 5; the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; and the Inter-American Convention to Prevent and Punish
Torture. The international human rights treaties ratified by Venezuela,
as mentioned above, form part of current substantive law and the rights
they embody have been incorporated into domestic law with constitutional
rank.
17. As can
be seen from the various extracts from legal provisions, Venezuelan
domestic law makes no distinction between torture and inhuman or degrading
treatment, but simply sets the penalties to which public officials
are liable for the generic offence of "arbitrary acts" or "acts not
authorized under the relevant regulations" committed against persons
in their care. In this respect, Venezuelan legislation is in line
with paragraph 4 of general comment No. 20, on article 7 of the International
Covenant on Civil and Political Rights, adopted by the Human Rights
Committee in 1992, and with article 16 of the Convention against Torture,
as will be explained in greater detail in the section of this report
dealing with the latter article.
Administrative
measures
18. By Presidential
Decree No. 3179 of 7 October 1993, the Government of Venezuela issued
the Regulations on the Coordination of Police Services and on Standards
of Conduct for Members of the Police Forces. These explicitly incorporate
into domestic law both the Code of Conduct for Law Enforcement Officials
(adopted by the General Assembly in resolution 34/169 of 17 December
1979) and the provisions of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment directly relevant
to police functions.
19. According
to article 24 of this Decree, "No law enforcement official may inflict,
instigate or tolerate any act of torture or other cruel, inhuman or
degrading treatment or punishment, nor invoke superior orders or exceptional
circumstances such as a state of war or a threat of war, a state of
emergency, riot or internal conflict, the suspension or restriction
of constitutional guarantees, a threat to national security, internal
political instability or any other public emergency as a justification
of such acts." The same terms are used in article 64 of the General
Rules of Procedure of the Metropolitan Police.
20. Article
114 of the Code of Penal Procedure sets forth the rules for police
action and states in paragraph 3 that police officers may not "inflict,
instigate or tolerate any act of torture or other cruel, inhuman or
degrading treatment or punishment, either at the time of arrest or
during the period of detention".
21. The whole
of chapter VIII of the Prison Regime Act is devoted to regulations
governing the disciplinary regime that may be applied in prison establishments,
and begins by stipulating, in article 51, that "the authority to administer
discipline is the sole prerogative of prison service staff". This
provision should be interpreted as meaning that discipline may not
be administered either by other prisoners (as the "head prisoner"
used to do in the past) or by external military guards.
22. According
to article 53 of the Act, the disciplinary measures that may be applied
are: private reprimand; total or partial loss of acquired statutory
benefits, privileges and awards; up to 30 days' confinement to the
cell; up to 15 days' solitary confinement but not completely incommunicado;
placement in a more rigorous treatment group; or transfer to another
establishment.
23. Coercive
measures (i.e. force) may be used in prison establishments only in
the following circumstances, as specified in article 57 of the Prison
Regime Act: (a) the attitude or conduct of an individual prisoner
or groups of prisoners constitutes an imminent risk of serious injury
to persons or
serious damage
to property; (b) all other means of controlling the prisoner or prisoners
have been exhausted; and (c) on explicit orders from the official
in charge of the establishment authorizing the use of such methods.
24. According
to article 3 of the Rules for Detention Centres (Internados
Judiciales), "no disciplinary measure shall take the form of
maltreatment by word or deed or of other measures or acts offensive
to personal dignity".
25. Another
aspect of the administrative measures taken in this area is the State's
responsibility for guaranteeing that these rights are respected equally
by all groups and individuals acting under its jurisdiction. Thus
the rights established in the Covenant must be respected not only
by the State or its agents, but also by private individuals. Venezuelan
law therefore provides for appropriate penalties in cases where groups
or individuals undertake activities or commit acts leading to the
violation of any of these rights.
26. A second
point here is that, with regard to human rights in general, and torture
in particular, the State has an obligation not only to respect these
rights and punish those who violate them, but also to prevent violations,
that is to say, to take positive steps to forestall them. As the Inter-American
Court of Human Rights has stated (Velásquez Rodríguez case,
para. 172): "An illegal act which violates human rights and which
is initially not directly imputable to a State (for example, because
it is the act of a private person or because the person responsible
has not been identified) can lead to international responsibility
of the State, not because of the act itself, but because of the lack
of due diligence to prevent the violation ..." (this relates, among
other things, to the extent to which the State tolerates the existence
of paramilitary groups or paramilitaries who use torture, for example).
The Court also states: "The State has a legal duty to take reasonable
steps to prevent human rights violations ..." (ibid., para. 174).
Paragraph 175 states: "This duty to prevent includes all those means
of a legal, political, administrative and cultural nature that promote
the protection of human rights and ensure that any violations are
considered and treated as illegal acts, which, as such, may lead to
the punishment of those responsible ...". This report will describe
the positive steps the State has taken to prevent the offence of torture.
Legal
measures
27. Since,
under the new rules of penal procedure, which will regulate judicial
proceedings when the Code of Penal Procedure comes into force, trials
will have to be conducted orally, i.e. the accused's statement will
have to be made to the public prosecutor or judge and not to the police.
Torture will thus lose any importance it may hitherto have had as
a means of obtaining evidence or extracting confessions. The Code
also stipulates that, in all cases, a statement will be void if it
is not made in the presence of the accused's attorney (art. 127).
28. Article
214 of the Code of Penal Procedure, which requires that evidence shall
be lawful, states that "no use may be made of any information obtained
through torture,
ill-treatment, coercion, threats or deceit ... or by any other means
that impairs an individual's will or violates his fundamental rights
...".
29. Under
article 479 of the new Code of Penal Procedure, the court of execution
shall ensure the correct application of prison regulations. The measures
used to do so shall include regular inspections of prison establishments,
as often as necessary. The court may call prisoners to appear before
it for purposes of supervision and control. The magistrate may be
accompanied on prison visits by representatives of the Public Prosecutor's
Office (art. 480). The court of execution will thus have the power
to correct and prevent abuses against prisoners by prison officers
or guards, which will also make it easier to ensure due respect for
human dignity.
Paragraph
2
30. In Venezuela,
the prohibition of torture is absolute, i.e. there is no lawful possibility
or circumstance that might permit, justify or legitimize torture.
Torture is absolutely prohibited both under the international instruments
to which Venezuela is party and under its own domestic law.
31. The guarantee
given in article 60, paragraph 3, of the Constitution is one that
cannot be restricted or suspended, even in situations of emergency,
during disturbances that might threaten the peace of the Republic,
or in serious circumstances affecting economic and social activity.
This is explicitly stipulated in article 241 of the Constitution.
This constitutional provision is in line with the provisions of article
4, paragraph 2, of the International Covenant on Civil and Political
Rights and article 27, paragraph 2, of the American Convention on
Human Rights, to both of which Venezuela is a party. The prohibition
of torture is thus absolute in Venezuela. No circumstances, however
serious, authorize the suspension or restriction of that prohibition.
Venezuelan law in this regard follows paragraph 3 of Human Rights
Committee general comment No. 20 on article 7 of the International
Covenant on Civil and Political Rights.
Paragraph
3
32. Due obedience
is no excuse for the offence of torture. This is explicit in the general
rule contained in article 46 of the Constitution, which states that
"Every act of the Public Power which violates or impairs the rights
guaranteed by this Constitution is void and the public officials and
employees who order or execute it shall be held criminally, civilly
or administratively liable, as the case may be, and orders of superiors
manifestly contrary to the Constitution and the laws may not serve
as an excuse". Under this provision of the Constitution, if torture
has been ordered by a superior, the responsibility lies both with
the person issuing the order and with the person who executes it.
33. However,
there are two legal provisions that run counter to article 46 of the
Constitution. They are:
(a) Article
65, paragraph 2, of the Penal Code, which states that "anyone acting
out of legitimate and due obedience" shall not be liable to punishment.
"In such a case, if the action carried out constitutes an offence
or violation, the appropriate penalty shall be imposed on the person
giving the illegal order." This provision clearly contradicts the
constitutional rule making the person issuing the order equally liable
with the person executing it;
(b) Article
22 of the Armed Forces (Organization) Act states that, "if an order
is abusive, a subordinate is entitled, after obeying it, to
complain to the immediate superior of the person who issued the order".
Since the armed forces may in certain circumstances act as forces
of law and order or be mobilized in emergencies, the existence of
this provision in the (Organization) Act is a matter of interpretation
of domestic law that needs to be resolved.
Neither of
these legal provisions is of practical value, since they are contrary
to the spirit and letter of the Constitution.
34. As already
mentioned, under article 24 of Presidential Decree No. 3179 of 7 October
1993, "no law enforcement official may inflict, instigate or tolerate
any act of torture or other cruel, inhuman or degrading treatment
or punishment, nor invoke superior orders ... as a justification of
such acts".
35. In granting
extraditions, Venezuela has complied with the procedures established
in the relevant laws and treaties and respected all relevant guarantees.
Extradition in Venezuela falls under the jurisdiction and responsibility
of the executive and the judiciary, and also of the Public Prosecutor's
Office.
36. Within
the executive, the Ministry of Foreign Affairs is responsible for
the "international processing of extradition requests, letters rogatory,
rogatory commissions and requests for the execution of court decisions
and judgements" (Central Administration (Organization) Act, art. 25,
para. 16) while the Ministry of Justice deals with "the administrative
processing of extradition requests, letters rogatory, rogatory commissions
and requests for the execution of court decisions and judgements,
without prejudice to the international processing which such requests
require" (ibid., art. 35, para. 3).
37. The Supreme
Court of Justice is competent to "state whether or not it is appropriate
to request or grant extradition in cases that are covered by public
treaties or authorized under the law" (Supreme Court of Justice (Organization)
Act, art. 42, para. 30). This power is vested in the Criminal Cassation
Division (ibid., art. 43).
38. The Public
Prosecutor's Office is competent to "act ... in proceedings relating
to execution of the decisions of foreign authorities, in extradition
proceedings, and when a specific Act provides for its intervention".
39. The procedure
for extradition is set forth in detail in articles 389 to 393 of the
Code of Criminal Procedure, which will remain in force until 1 July
1999. In the new Code of Penal Procedure due to enter into force on
1 July 1999, the procedure is set forth in articles 394 to 402.
40. Under
current legal provisions, Venezuela cannot expel, return or extradite
a person who is in danger of being subjected to torture in the requesting
State. As well as being a party to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, Venezuela
is also a party to the Inter-American Convention to Prevent and Punish
Torture. Since international human rights standards are self-executing,
the rights established in both conventions are part of the substantive
legislation in force in Venezuela.
41. In every
case, before taking a decision on extradition the court must give
a hearing to the detainee, who may claim, and should naturally provide
evidence, that torture is practised in the requesting country or State
or that human rights in general are violated. In such situations,
all information on human rights is valid, whether provided by international
organizations or by reputable and credible NGOs.
42. Although
Venezuelan criminal law does not recognize any offence of "torture",
it does recognize that some situations constitute acts of torture,
in the terms in which the offence is defined and characterized in
article 1 of the Convention.
43. Article
176 of the Penal Code provides for imprisonment for "anyone who, without
authority or right, uses threats, violence or other unlawful coercion
to compel a person to carry out or tolerate an act he is not obliged
to perform by law or prevents him from performing an act that is not
prohibited by law ... If such coercion also involves an abuse of public
authority or is exercised against a family member or partner or against
a public official in connection with his duties, or if it leads to
serious harm to the person, health or property of the victim ...",
the penalty is increased.
44. Under
article 182 of the Penal Code, a prison sentence of between 15 days
and 20 months may be imposed on "any public official who, while responsible
for the custody or transfer of any detained or convicted person, commits
arbitrary acts against that person or subjects him to acts not authorized
under the relevant regulations ... The same penalty shall apply to
any public official who, having authority over such a person by virtue
of his office, commits any such acts against him". Under the same
article, a prison sentence of between three and six years may be imposed
if any "suffering, offences against human dignity, harassment, torture
or physical or moral attacks are inflicted on a detained person by
his guards or warders or by anyone ordering such acts, in violation
of the individual rights recognized in article 60, paragraph 3, of
the Constitution".
45. Attempted
torture is also punishable, under article 80 of the Penal Code. Moreover,
acquiescence and complicity are defined as offences and are
punishable
under articles 83 to 85 of the Code. Attempted torture and acquiescence
or complicity in torture are thus punishable under Venezuelan law.
46. The Venezuelan
State has clearly established its jurisdiction over the offences referred
to in article 5 of the Convention.
47. According
to article 4 of the Penal Code, persons liable to trial in Venezuela
and punishable under Venezuelan criminal law include:
"1. Venezuelans who,
while in a foreign country ... commit acts punishable by law"
(the offence of torture being, naturally, one of those acts punishable
under the law);
"2. Foreign nationals
or citizens who, while in a foreign country, commit an offence
against ... a Venezuelan national" (this would include cases where
foreigners commit the offence of torture against Venezuelans).
48. Since,
under article 6 of the Penal Code, "the extradition of a Venezuelan
may not be granted under any circumstances", in the event that a Venezuelan
national committed the offence of torture in a foreign country, he
"should be tried in Venezuela, at the request of either the victim
or the Public Prosecutor's Office".
49. As regards
detention with a view to extradition of a person suspected of the
offence of torture, the Venezuelan State is guided by the legal provisions
referred to in the Constitution, by the Inter-American Convention
on Extradition to which Venezuela is a party, and by the Code of Criminal
Procedure currently in force.
50. Under
article 60, paragraph 1, of the Constitution:
"No one may be arrested
or detained, unless caught in flagrante, except by virtue
of a written warrant of an official authorized to order his detention,
in the cases and with the formalities prescribed by law. The pre-trial
proceedings may not be prolonged beyond the legal time limit."
"The accused shall
have access to pre-trial safeguards and to all means of defence
prescribed by the law as soon as the corresponding detention order
is issued."
"In the event that
a punishable act has been committed, the police authorities may
adopt provisional measures of necessity or urgency, indispensable
to ensure investigation of the act and trial of the defendants.
The law shall fix a brief and peremptory time limit by which the
judicial authorities must be notified of such measures, and
51. Under
article 60, paragraph 2, of the Constitution,
"No one may be deprived
of his liberty for obligations whose non-observance has not been
defined by law as a crime or misdemeanour."
52. Articles
75 and 75-H of the Code of Criminal Procedure establish the powers
of the Judicial Police as an auxiliary body of the judicial authorities,
and regulate the procedure to be followed when detention has been
carried out proprio motu, on the basis of a complaint or by
order of the competent authorities.
53. According
to article 14 of the Inter-American Convention on Extradition:
"1. In urgent cases,
a State party may request by the means of communication provided
for in Article 10 of this Convention (through the diplomatic agent
of the requesting State, or its consular officer, or the diplomatic
agent of a third State, or directly from Government to Government),
or any other such means, the detention of the person who is judicially
required for prosecution, is being tried, has been convicted,
or has been sentenced to a penalty involving deprivation of liberty,
and may also request the seizure of the objects related to the
offense. The request for provisional detention shall contain a
statement of intention to present the formal request for the extradition
of the person sought, a statement of the existence of a warrant
of arrest or of a judgment of conviction against that person issued
by a judicial authority, and a description of the offense. The
request for provisional detention shall be the sole responsibility
of the requesting State.
"2. The requested State
shall order provisional detention and, when appropriate, the seizure
of objects and shall immediately inform the requesting State of
the date on which provisional detention commenced.
"3. If the request
for extradition, accompanied by the documents referred to in Article
11 of this Convention (i.e. the supporting documents), is not
presented within sixty days of the date on which the provisional
detention referred to in paragraph 1 of this article commenced,
the person sought shall be set free.
"4. After the period
of time referred to in the preceding paragraph has expired, the
detention of the person sought may not be again requested except
upon presentation of the documents required under Article 11 of
this Convention."
Article 7
54. The various
situations referred to in this article of the Convention are dealt
with by the Constitution and in domestic legislation, and by the Inter-American
Convention on Extradition, to which Venezuela is a party.
55. Article
49 of the Constitution provides for constitutional protection (amparo),
which guarantees fair treatment from the very beginning of proceedings,
as follows: "The courts shall protect every inhabitant of the Republic
in the enjoyment and exercise of the rights and guarantees established
in this Constitution, in conformity with the law. Proceedings shall
be brief and summary and the competent judge shall have the power
to re-establish immediately the infringed juridical situation." Due
process must in all cases be observed, in accordance with the law.
56. According
to article 2, paragraph 3, of the Inter-American Convention on Extradition:
"The requested State
may deny extradition when it is competent, according to its own
legislation, to prosecute the person whose extradition is sought
for the offense on which the request is based. If it denies extradition
for this reason, the requested State shall submit the case to
its competent authorities and inform the requesting State of the
result."
On this basis,
in the event that extradition does not take place, Venezuela will
submit the case to its competent authorities for prosecution, in accordance
with article 7, paragraph 1, of the Convention against Torture.
57. Another
possible situation is that extradition proceedings take place but
the requested State does not hand over the person in question (for
example, on the grounds that he could be tortured on being handed
over to the requesting State). In such cases, the requested State
is obliged, under article 8 of the Inter-American Convention on Extradition,
to prosecute the person for the offence with which he is charged,
just as if it had been committed within its territory, and shall inform
the requesting State of the judgement handed down. Venezuela fully
complies with this procedure.
58. In extradition
cases, Venezuela is guided by the relevant international treaties
(the Bustamante Code and the Inter-American Convention on Extradition),
by extradition treaties concluded with other countries (see list below),
and by the Constitution and other relevant domestic legislation.
59. Venezuela
fully endorses article 2 of the Declaration on the Protection of All
Persons from being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, which states that torture "is an
offence to human dignity and shall be condemned as a denial of the
purposes of the Charter of the United Nations and as a violation of
the human rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights". This is a clear statement of intent
to consider and classify torture as a crime which, because of its
significance, characteristics and consequences, infringes the fundamental
rights and values of all human beings, and not only those of the victims.
As such, the offence of torture is an international offence, which
should be prosecuted by all civilized States.
60. Insofar
as it offends human dignity, torture harms all human beings, in the
broadest of terms. To condemn it as a denial of the purposes of the
Charter of the United Nations is to identify it as a threat to the
obligations undertaken and the ideals proclaimed by the peoples of
virtually every State in the world, and one that runs counter, in
particular, to the basic ideal and obligation to encourage respect
for "human rights and for fundamental freedoms for all without distinction
as to race, sex, language or religion ...". Moreover, to condemn it
as a violation of the Universal Declaration of Human Rights identifies
torture as a threat to the "inherent dignity" and "the equal and inalienable
rights of all members of the human family".
61. In ratifying
the Inter-American Convention on Extradition, Venezuela restated its
undertaking under this article to afford the greatest measure of assistance
to other States parties in connection with criminal proceedings brought
in order to punish those responsible for the offence of torture, including
the supply of all necessary evidence.
62. The Inter-American
Convention on Extradition obliges States parties to hand over to other
States parties, at their request, persons who are judicially required
for prosecution, are being tried, have been convicted or have been
given a custodial sentence. Venezuela was moved to approve and, later,
ratify this Convention in the belief that - in the words of the third
preambular paragraph - "the close ties and the cooperation that exist
in the Americas call for the extension of extradition to ensure that
crime does not go unpunished, and to simplify procedures and promote
mutual assistance in the field of criminal law on a wider scale than
provided for by the treaties in force, with due respect to the human
rights embodied in the American Declaration of the Rights and Duties
of Man and the Universal Declaration of Human Rights".
63. Venezuela
has also signed a number of bilateral treaties on extradition, the
terms of which are binding on the parties. It has signed the following
extradition treaties:
Extradition treaty
between Venezuela and the United States of America (1922);
Extradition agreement
between Venezuela, Ecuador, Bolivia, Peru and Colombia (1911);
Extradition agreement
between Venezuela and Cuba (1910);
Extradition agreement
between Venezuela and Belgium (1884);
Extradition agreement
between Venezuela and Brazil (1938);
Extradition agreement
between Venezuela and Spain (1894);
Extradition agreement
between Venezuela and Chile (1962);
Extradition agreement
between Venezuela and Italy (1930);
Inter-American Convention
on Extradition, or Caracas Convention (1981).
Article 10
Paragraph 1
64. With
the support of foundations and NGOs, the State has developed training
programmes for law enforcement officials, a category that includes
all police, the National Guard, the armed forces and prison warders.
65. The Human
Rights Foundation, which is a private, non-profit-making institution
devoted to human rights teaching, promotion, information and research
with a multidisciplinary approach, was founded in August 1992 by a
group of prominent Venezuelans involved in study, research and teaching
in human rights. It has developed training and information programmes
at various levels, including human rights courses and workshops geared
specifically to the police, armed forces and prison staff. Examples
of these are workshops given by the Foundation for the Caracas Metropolitan
Police, the Maracay (Aragua State) police and the Municipal Police
of San Francisco in Maracaibo (Zulia State). It has also organized
courses for prison warders. A special section of this information
and training programme relates to the prohibition of torture.
66. Another
institution that has developed programmes on the subject is the Committee
of Family Members of Victims of the Unrest (COFAVIC), an NGO working
for the protection and promotion of human rights in general. It has
also run workshops as part of its basic programme of comprehensive
human rights training for prison officials. COFAVIC has received financial
cooperation to develop these programmes from accredited diplomatic
missions of foreign Governments in Venezuela. Officials from various
prisons have taken part.
67. The National
Human Rights Commission was established by Decree No. 1034 of 24 January
1996, and is composed of representatives of various ministries and
of the Public Prosecutor's Office and the Sub-Commission on Human
Rights of the Chamber of Deputies Commission on Internal Policy. It
also plays a part in training and information. Its constituent decree
sets forth its powers and competence in the following terms: (a) to
advise the executive branch on all national and international human
rights issues; (b) to help the country fulfil its obligations under
the international treaties and agreements it has signed; (c) to study
and recommend measures it considers necessary to encourage the promotion
and protection of human rights within the country; and (d) to facilitate
cooperation between the executive, NGOs and the general public in
all matters regarding observance and guarantees of human rights. The
Commission arranges its training programmes through NGOs.
68. In order
to ensure respect for the law in practice and to encourage all prison
staff to have due respect for the human dignity of prisoners, the
Ministry of Justice, with the assistance of the European Economic
Community and NGOs, has held human rights training courses for nearly
all prison staff - both administrative and custodial, particularly
on the proper treatment of prisoners.
69. The Institute
of Prison Studies, a department of the Ministry of Justice founded
in 1990, trains senior prison officers who, on completion of their
studies,
begin work as prison guards. In theoretical and practical courses,
they are trained in the treatment of prisoners, in accordance with
relevant domestic law and international standards.
70. The Foundation
for the Comprehensive Development of the Prison System, located in
Miranda State and established by that State as part of the administrative
decentralization process, has also developed prison guard training
programmes. Other State governments have set up programmes of the
same kind.
71. An important
step forward was taken with the replacement of the old General Inspectorate
of Prisons, which was a department of the Prisons Board, by a National
Coordinating Board for Prison Inspection and Control, a body comprising
a prisoners' ombudsman, a representative of Congress, NGO representatives
and a representative of the Ministry of Justice. Its basic tasks are
to monitor officials' conduct and establish the legitimacy of investigations
into their conduct and of disciplinary penalties imposed on officials
who, in the performance of their duties, mistreat prisoners or behave
irregularly in any way.
72. Problems
of evidence still arise during criminal proceedings owing to a lack
of resources and the forensic physicians' inability to detect when
a person has been subjected to torture. This is one of the commonest
limitations in such investigations.
73. Venezuela
has been making efforts - albeit not completely successful as yet
- to overcome these limitations. The Director-General of Human Rights
of the Public Prosecutor's Office set up a national programme of workshops
in 1997 to acquaint medical professionals with the latest techniques
for detecting torture that leaves no visible or obvious marks, and
psychological torture. However, as is well known, some of these tests
require specialized equipment, which, in Venezuela, is not yet in
general use.
Paragraph
2
74. By Decree
No. 3179 of 7 October 1993, the Code of Conduct for Law Enforcement
Officials was incorporated into the compulsory standards for such
officials in Venezuela. In this Decree, the Venezuelan State explicitly
stipulates that:
"Public order and the
safety of all persons and property are fundamental to the full
enjoyment of citizens' rights and guarantees and to the functioning
of the State, and it is the inescapable duty of the national Government
to ensure their preservation and maintenance";
"It shall be the task
of the police and security forces in a democratic society to protect
and guarantee the free exercise of the rights and freedoms of
individuals; to prevent and combat any kind of crime; and to maintain
internal peace, tranquillity, order and public safety, with strict
respect for the human rights and fundamental freedoms of all";
"The action of the
police and security forces must at all times comply with the requirements
of the democratic constitutional order, as set forth in the Constitution
and in the international human rights instruments that are binding
on the Republic"; and
"There are various
guidelines with which the conduct of members of the police and
security forces must comply, since they have been recognized as
universal by the United Nations and Venezuela is in a position
to incorporate them into its domestic legal order as a prime component
of the rule of law: for example, the Code of Conduct for Law Enforcement
Officials, adopted by the United Nations General Assembly on 17
December 1979 (resolution 34/169); and the Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials, adopted
by the eighth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders".
75. According
to article 24 of the Decree:
"No member of the police
forces may inflict, instigate or tolerate any act of torture or
other cruel, inhuman or degrading treatment or punishment, or
invoke superior orders or exceptional circumstances such as a
state of war, state of emergency, internal disturbance or conflict,
the suspension or restriction of constitutional guarantees, a
threat to national security, internal political instability or
any other public emergency as justification for such acts.
"The term 'torture'
means any act by which pain or suffering, whether physical or
mental, is intentionally inflicted on a person for purposes of
a criminal investigation, as a means of intimidating him, as a
personal punishment, as a preventive measure or for any other
purpose. 'Torture' also means the use of methods tending to suppress
an individual's personality or diminish his physical or mental
capacity, even without causing physical pain or mental anguish".
Article 11
76. Venezuela
has established standards and instructions for the treatment to be
given to detained persons and for methods of interrogation, all of
which form part of an overall policy of averting any incidence of
torture.
77. According
to article 403 of the Code of Criminal Procedure, all prison establishments
shall be inspected at least every two weeks by competent court officials
who may request information of any kind concerning the treatment of
prisoners. The inspections are made by judges, government procurators
and ombudsmen for prisoners. Prison officers are required to offer
every assistance in this kind of inspection. The purpose of these
visits, as stated in article 405 of the Code, includes monitoring
the treatment, assistance and food given to prisoners and detainees,
and noting any complaints they may have against their warders, guards,
ombudsmen or procurators.
78. Article
6 of the Public Prosecutor's Office (Organization) Act establishes
the powers of the Public Prosecutor's Office, which include ensuring
respect for the human and constitutional rights of persons detained
in police stations, places of detention, military detention centres,
labour colonies, prisons and penitentiaries, reform schools and other
detention and internment establishments; supervising inmates' and
internees' conditions of detention; and taking appropriate legal steps
to enforce human rights when it is established that they have been
or are being impaired or violated.
79. Article
64 of Decree No. 943 of 22 November 1995 establishing the General
Rules of Procedure of the Metropolitan Police, expressly and strictly
prohibited all police officers from inflicting, instigating or tolerating
any act of torture or cruel, inhuman or degrading treatment, or invoking
superior orders or exceptional circumstances such as a state or threat
of war, a state of emergency, internal disturbance or conflict, the
suspension or restriction of constitutional guarantees, a threat to
national security, internal political instability or any other public
emergency as justification for such acts.
80. These
legal provisions notwithstanding, as Mr. Nigel Rodley, the Special
Rapporteur on torture, points out, torture continues to be practised
both by the police and by the armed forces in areas of emergency and
conflict. The Special Rapporteur was given "explanations" by senior
police officers, including:
(a) "The
Director of the PTJ (Criminal Investigation Department of the Judicial
Police) said that its staff was insufficient for the large quantity
of events of all types it had to investigate and that there were times
when the officers took the easiest way of speeding up the investigation.
He did say, however, that although there were abuses, these were not
institution policy and were not supported by the PTJ management" (E/CN.4/1997/7/Add.3,
para. 34);
(b) "The
Metropolitan Police authorities said that abuses by the police have
been reported more regularly in recent years and that the police encouraged
citizens to lodge complaints. Police officers also know that complaints
are investigated and that there is a risk of punishment, which has
brought down the number of incidents of abuse" (ibid., para. 35);
(c) "The
Chief of the Zulia State Police said that cases where citizens had
received serious injuries at the hands of the Zulia police had occurred,
but that they were being investigated. He also said that much of the
problem was due to lack of proper training of police staff" (ibid.,
para. 37).
81. As can
be seen from these extracts from the report of the Special Rapporteur
on torture, quoted at random from among many other cases in the report
that could have been cited, cases of torture continue to occur in
Venezuela owing basically to deficiencies in the police services,
rather than to any systematic policy of using torture. The authorities
believe that what is important now is to prevent the offence of torture
and punish the perpetrators; this is the aim of State policies in
practice.
82. A series
of provisions are now in force with the aim of fulfilling Venezuela's
obligation under this article.
83. Under
article 66 of Decree No. 943 of 22 November 1995, establishing the
General Rules of Procedure of the Metropolitan Police, "When police
officers have reason to believe that any of the behaviour mentioned
in article 64 of these Rules (that a police officer might inflict,
instigate or tolerate any act of torture or cruel, inhuman or degrading
treatment), they shall inform their superiors and, if necessary, any
appropriate authority or body vested with reviewing or remedial power,
so that the violation may be made good".
84. Under
article 374 of the current Code of Criminal Procedure, "The government
procurator is under an obligation to report to the competent tribunals
any offences committed in his jurisdiction by public officials in
the performance of their duties, or for reasons connected with their
office, and any individual may bring charges against them".
85. Articles
292 and 293 of the new Code of Penal Procedure provide for an official
investigation in the following terms:
"Article 292. The Public
Prosecutor's Office, on being apprised in any way that a publicly
actionable offence (such as torture) has been committed, shall
order preliminary steps to be taken to investigate it and prepare
a report, including all the circumstances that might affect its
characterization and the responsibility of the perpetrators and
other participants, and the securing of material evidence directly
and indirectly related to the offence.
"Article 293. If the
information is received by the police authorities, they shall
communicate it to the Public Prosecutor's Office within eight
hours and shall take only the necessary and urgent preliminary
steps".
Article 13
86. Any person
who has been subjected to torture or ill-treatment has the right to
lodge a complaint, and this must be received and processed by the
administrative or judicial authorities, or both. Thus the basic remedy
available to the victims of torture or other inhuman treatment is
a complaint to the competent authorities. The complaint may be made
by the victim or by a member of his family (it is usually the latter)
to the Attorney-General's Office. If the allegation is confirmed or
there are reliable indications that an offence has been committed,
the Attorney-General's Office refers the case to the criminal courts.
87. Since
complaints of torture or ill-treatment are normally made against public
officials who are members of law enforcement agencies such as the
police, prison officers or interrogators, some explanations are called
for concerning the limitations of these procedures within the current
Code of Criminal Procedure.
88. Generally
speaking, proceedings against public officials in Venezuela can only
be brought, with certain exceptions, after a series of special procedures
that provide guarantees or conditions of admissibility consistent
with the position of a public official and the need for the dignity
of the State itself to be protected and the proceedings to be impartial.
The use of special procedures in trying holders of public office does
not confer any privilege or immunity from the statutory penalties.
Their purpose is to safeguard public office and officials by avoiding
instability associated with hasty, unjustified or malicious complaints
or accusations intended to disrupt the legal order. The law has therefore
established that, before public officials can be tried for offences
committed in the performance of their duties and by virtue of their
position, certain procedures or requirements must be complied with
before criminal proceedings can be brought.
89. The Code
of Criminal Procedure provides, then, for a special procedure, which
may be initiated by a complaint from a government procurator by a
charge brought by private individuals, or proprio motu in exceptional
cases as provided for by law. Certain formalities must be completed,
such as preliminary examination of cause and preliminary steps to
establish the actionable offence committed by the official, which
constitutes what is known in law as an información de nudo hecho
(an information) procedure. This procedure, which is of course meant
as a safeguard against malicious complaints and proceedings against
law enforcement officials, and especially the police and security
officials, has frequently been a serious impediment to effective complaints
against police abuses. Even official statistics show that only a small
minority of complaints against police abuses are brought to a successful
conclusion.
90. The procedure
will undergo substantial changes with the entry into force on 1 July
1999 of the new Code of Penal Procedure, which will enable the victim
or any person with knowledge of an actionable offence to lay a complaint
before a government procurator or a police criminal investigation
body (see Code of Penal Procedure, art. 294). The investigation will
be initiated proprio motu by the Public Prosecutor's Office
and will then proceed as normal.
91. Article
118 of the Code permits "any individual or human rights association"
to lodge "a complaint against public officials or employees or members
of the police forces who have violated human rights in the performance
of their duties or in connection with them". Further, article 119
provides for special assistance in that "the person directly affected
by the offence may, within a victims' protection or aid association,
delegate the exercise of his rights if that is more beneficial for
the defence of his interests". As these two articles show, the law
confers an important role on NGOs in complaints concerning human rights
violations, and particularly in cases involving torture, which, as
is well known, is one of the violations that private individuals tend
not to report, partly through fear of reprisals against them or their
families.
92. The new
Code of Penal Procedure clearly establishes the rights of victims.
It states that "protection and compensation for the damage caused
to the victim of the offence are objectives of the penal procedure",
and that "the Public Prosecutor's Office has an obligation to guarantee
those interests at all stages. The judiciary shall enforce the victim's
rights and ensure respect, protection and compensation during the
proceedings. In addition, the police and other auxiliary bodies shall
treat him in a manner consistent with his status as a victim, making
every effort to enable him to take part in proceedings when necessary"
(Code of Penal Procedure art. 115).
93. Article
117 of the Code sets forth the rights of the victim, including the
right "to request measures of protection against probable attacks
on him or his family" and "to initiate civil proceedings to establish
civil liability for the actionable offence". Compensation would naturally
be a part of such civil proceedings.
94. In Venezuela,
anyone who is criminally liable for an offence or misdemeanour is
also civilly liable, the right of action in respect of acts perpetrated
by public officials in the performance of their duties being time-barred
after 10 years.
95. Since
Venezuela is a State party to the American Convention on Human Rights,
it has automatically incorporated into its legal system article 63
of the Convention which states, with reference to the competence and
functions of the Inter-American Court of Human Rights: "If the Court
finds that there has been a violation of a right or freedom protected
by this Convention, the Court shall rule that the injured party be
ensured the enjoyment of his right or freedom that was violated. It
shall also rule, if appropriate, that the consequences of the measure
or situation that constituted the breach of such right or freedom
be remedied and that fair compensation be paid to the injured party".
96. Venezuela
has no rehabilitation programmes especially designed by the State
for victims of torture or ill-treatment. However, there are a number
of NGOs that document complaints of torture, and they always demand
that the State should pay compensation if the alleged offences are
proved.
97. In Venezuelan
law and practice, no statement that is shown to have been made as
a result of torture may be submitted as evidence in any proceedings.
98. According
to article 60, paragraph 4, of the Constitution, no one may be compelled
to make a statement or to acknowledge guilt in a criminal trial against
himself, nor against his spouse or the person with whom he cohabits,
nor against his relatives within the fourth degree of consanguinity
or second degree of affinity.
99. The Code
of Criminal Procedure, which will remain in force until 1 July 1999
when the new Code of Penal Procedure will enter into force, provides
as follows in article 247: "A confession made by the accused before
the court during the pre-trial proceedings, before or after arrest,
or during the trial, may be used in evidence against him under the
following conditions: (1) it must have been made of his own free will
and not under oath; (2) the
facts of
the crime must have been fully established; and (3) in addition to
the documents, there is at least some evidence or grounds for suspicion
against the accused. If the documents do not contain the probative
component referred to in (3) above, the confession shall have the
status only of more or less important circumstantial evidence against
the accused; and if neither conditions (1) nor (2) are met, the confession
can have no status, even as circumstantial evidence ...".
100. In this
regard, the Code of Penal Procedure, which has already been enacted
but is in abeyance until 1 July 1999, provides as follows:
(a) Under
article 122, which establishes the rights of the accused: "9. To be
apprised of his constitutional right not to make a statement and,
in the event that he consents to make a statement, his right not to
make it under oath. 10. Not to be subjected to torture or other treatment
of a cruel or inhuman nature or that is degrading to his personal
dignity. 11. Not to be subjected to techniques or methods that distort
his free will, even with his consent";
(b) Under
article 214, which deals with the legality of evidence: "Evidence
shall be valid only if it has been obtained by lawful means and introduced
into the proceedings in accordance with the provisions of this Code".
The general principle is developed further in the subparagraph to
this article, as follows: "No use may be made of information obtained
through torture, ill-treatment, coercion, threats, deceit, improper
interference in the privacy of the home or correspondence, communications,
documents and private records, or by any other means that impairs
the will or violates the fundamental rights of persons. Neither shall
any value be attached to information obtained directly or indirectly
by unlawful means or procedures".
101. As a
State party to the American Convention on Human Rights, Venezuela
automatically incorporates the provisions of article 8, paragraph
3, of that Convention, which stipulates: "A confession of guilt by
the accused shall be valid only if it is made without coercion of
any kind".
102. In practice,
despite the undoubted existence of all these legal provisions reflecting
the requirements of the Convention against Torture, cases of torture
during police questioning continue to come to light and to be reported.
Factors contributing to this situation include: a lack of modern investigative
techniques, which means that "police truth" frequently depends on
confessions extracted using torture; lack of professional training
for the police and for investigation units in general; extensive impunity
for the offence of torture; and the relatively long period of detention
in police custody before the prisoner is handed over to the relevant
court. Some of these shortcomings are being rectified through programmes
now under way. For example, article 259 of the new Code of Penal Procedure
reduces the time-limit for a detainee to be brought before the court
for a decision, from the current 8 days to 48 hours. In addition,
the precautions designed to prevent and avoid torture include the
freedoms and recognition granted to NGOs, which have been very active
in investigating and reporting cases. Other action taken to combat
this evil practice involves providing the police with professional
training and courses in human rights.
103. Venezuelan
domestic law makes no distinction between torture and inhuman or degrading
treatment, merely establishing penalties for public officials guilty
of the generic offence of "arbitrary acts" or "acts not authorized
under the relevant regulations" against persons in their care. In
this respect, Venezuelan legislation is in line with article 16 of
the Convention and with paragraph 4 of General Comment No. 20 on article
7 of the International Covenant on Civil and Political Rights, adopted
by the Human Rights Committee in 1992.
104. Article
60, paragraph 3, of the Constitution, referring to individual rights,
condemns any kind of ill-treatment, clearly stating that no one may
be subjected to torture "or to other procedures which cause physical
or moral suffering. Any physical or moral attack inflicted on a person
subjected to restriction of his liberty is punishable".
105. Venezuelan
criminal law, too, establishes penalties for any kind of ill-treatment,
and not only torture as defined in the Convention. According to article
182 of the Penal Code, for example, "any suffering, offences against
human dignity, harassment, torture or physical or moral attacks inflicted
on a detained person, by his jailers or warders or by anyone who ordered
such acts, in violation of the individual rights recognized in paragraph
3 of the Constitution, shall be liable to a prison term of three to
six years".
The prison
problem in Venezuela
106. In the
report on his visit to Venezuela in 1996, Mr. Nigel Rodley, the Commission
on Human Rights Special Rapporteur on torture, analysed the situation
in prisons there and suggested that the conditions prevailing in prisons
constituted in themselves cruel, inhuman and degrading treatment.
It might therefore be useful to give the Committee against Torture
some account, however brief, of the situation in prisons in Venezuela
and the efforts being made to overcome problems.
107. Serious
outbreaks of violence in prisons, resulting in deaths, injuries, kidnapping
and loss or destruction of property, are an old problem in Venezuela,
but their frequency has increased in recent years. There can be no
doubt that such events have been precipitated in part by inadequate
physical conditions in these establishments, shortcomings in the prison
administration system - particularly in the health, catering and employment
services -overcrowding, judicial delays, lack of adequate supervision,
corruption, arms and drugs trafficking, and also abuses on the part
of administrative officials and internal and external warders and
guards. Particularly in recent years, with outbreaks of violence becoming
increasingly common, efforts have been made to examine and eliminate
their causes. Hence the prison building and improvement programme,
the reforms designed to speed up trials and reduce overcrowding, the
improvements in catering and health services, permanent attendance
by government procurators, instruction and training for prison staff,
etc.
108. Recent
studies by the Ministry of Justice have found that, although the pattern
of violence varies from prison to prison depending on specific circumstances,
the vast majority of outbreaks result from confrontations and conflicts
over the supply, control, trafficking and use of weapons and drugs.
109. Prison
violence in Venezuela most commonly takes the form of battles in which
one gang or group of assailants violently and by force of arms invades
the area held by a rival group or gang, taking the warders by surprise
or overpowering them (for their own safety and that of the inmates,
such staff only very rarely carry firearms). Once inside rival territory,
the attackers padlock and chain the entrance doors, shutting in as
many opponents or non-partisans as possible and shutting out security
staff while they lay into their victims.
110. The
way the authorities and security forces react naturally depends on
the scale and potential of the threat, and also on their legal and
physical power of action. It is always difficult to control such emergency
situations and at the same time respect human rights and avoid violence
and the destruction of property and belongings. When the situation
has been brought under control, there are searches, confiscations
of weapons and drugs, punishment for those responsible and the ringleaders
of the disturbances, and transfers to other prisons, all of which
creates an atmosphere of tension that is conducive to further demands,
mass protests, destruction, hunger strikes and renewed threats of
violence.
111. The
many preventive and security measures taken by the prison administration
to deal with prison violence include the following:
(a) In order
to avoid excessive injury, it has been decided that the internal security
guards in prisons should carry only "non-offensive" weapons, that
is to say they will use instruments, methods and tactics similar to
those used in the first stage of street demonstration control, for
example visored helmets and shields, protective jackets, masks and
rifles firing plastic pellets;
(b) The
prison authorities are aware that drug abuse and trafficking are universal
problems that have highly adverse effects on discipline and order
within prisons and undermine rehabilitation programmes, and they have
paid particular attention to controlling them. In order to identify
and catch traffickers and their accomplices in the act of bringing
drugs into prisons, the Ministry of Justice has devised a preventive
search and control programme, tightening procedures for searching
the person, clothing and other belongings of those wishing to enter
prison premises as visitors, particularly visitors and officials who
are suspected of being traffickers or couriers. As part of this policy,
and in order to avoid abuses, or protests over the way inspectors
and supervisory officials deal with visitors, the Ministry of Justice
has drawn up detailed instructions regulating visitor search procedures,
in accordance with legal standards and always respecting human dignity;
(c) A national
campaign for disarmament in prisons is also under way. The confiscation
of weapons and other banned objects in inmates' possession reduces
the risk of violence and helps to maintain order. In the implementation
of this campaign, joint actions have been planned by the Ministry
of Justice and the national armed forces, whose officers carry out
coordinated surprise operations in order to avoid the risk of information
leaks, without excessive preparation or mass deployments, seeking
effectiveness rather than sensationalism;
(d) Prison
staff have paid particular heed to the most pressing demands of inmates
by implementing assistance programmes, which have proved the most
effective means of reducing protest and providing some relief for
the always difficult conditions of deprivation of liberty. The programmes
involve psychological aids services, legal aid services, social welfare
services, chaplaincy, sports services and educational services.
The problem
of prolonged pre-trial detention and its connection with torture
112. The
Special Rapporteur also drew attention in his report to the length
of pre-trial detention and its direct relationship with the risk of
torture. In paragraph 85 (a) of the report, he recommends that "the
period of time in which detained persons are to be brought before
a judge should be reduced from eight to no more than four days".
113. In Venezuela,
the general principle of freedom is established in article 43 of the
Constitution, and the right to liberty and security of person is established
in article 60, paragraph 1, which states that liberty and security
of person are inviolable, and consequently no one may be arrested
or detained, unless caught in flagrante, except by virtue of
a written warrant of an official authorized to order the detention,
in the cases and with the formalities prescribed by law.
114. Under
the Penal Code, a penalty of between 45 days' and 3 years' imprisonment
may be imposed on a public official who abuses his powers or violates
the conditions or formalities prescribed by law in depriving a person
of his liberty. This penalty is increased from three to five years'
imprisonment if the public official does so by means of threats, violence
or other unlawful coercion and compels another person to carry out
or tolerate an act he is not obliged to perform by law or prevents
him from performing an action that is not prohibited by law.
115. The
law provides that, in the event that a punishable act has been committed,
the police authorities may adopt provisional measures of necessity
or urgency, indispensable to ensure investigation of the act and trial
of the defendants. The law shall fix a brief and peremptory time-limit
by which the judicial authorities must be notified of such measures,
and shall also establish the period within which the latter shall
rule on them, it being understood that they have been revoked and
are without effect unless confirmed within that period.
116. The
time-limit established in law for police authorities who have placed
a suspect in pre-trial detention to bring him before the relevant
court is eight days from the date of arrest (art. 75-H) of the current
Code of Criminal Procedure). They shall also hand over to the court
any documents relating to the preliminary investigations and any instruments,
weapons or effects that have been secured for the purposes of the
pre-trial proceedings. The
examining
court must take a decision on detention within 96 hours, unless, as
in serious and complex cases, it requests a longer period, which shall
not, however, exceed eight days.
117. Notwithstanding
these legal provisions, it is relatively common for the police to
arrest people without justification, particularly if an offence has
been committed and the perpetrators have not been identified, and
even if no actionable offence has been committed but the police regard
someone as "suspicious". Unjustified arrests also occur during "raids",
i.e. pre-emptive operations in high crime areas, particularly at night
in densely populated zones such as the slums of large cities. Human
rights activists and NGOs in general have frequently complained that
these raids constitute serious abuses on the part of the police, in
violation of constitutional provisions and the human rights established
in international instruments. Efforts are being made to prevent the
security forces from continuing such operations, which not only violate
human rights but have also proved ineffective in the fight against
crime.
118. The
general principle of freedom established in article 60 of the Constitution
has been devalued by the interpretation placed on it by the police,
namely that, during the eight-day maximum period of pre-trial detention,
any person may be detained in order to help with the investigation
of an offence. The police interpret the time-limit as an authorization
to hold a person for the full eight days, regardless of any change
that might occur during that period in the circumstances which originally
justified that measure. There is no consistent interpretation of the
rule on the part of law enforcement officials. In many cases, they
detain a person for eight days not in order to carry out the requisite
investigations but as a punishment, which distorts the purpose of
pre-trial detention.
119. Under
current Venezuelan law, this eight-day pre-trial detention is intended
as an exceptional measure and is justified in cases where there is
sufficient evidence that an individual was involved in the perpetration
of an offence carrying a prison sentence, and circumstances give reason
to believe that the suspect will slip out of the investigators' hands,
or else it is feared that he will impede the investigation by destroying
potentially useful material evidence. It should be added that, according
to article 60, paragraph 1, third subparagraph, of the Constitution,
this step may only be taken in cases of "necessity or urgency" and
when it is "indispensable".
120. In this
area, too, the police are being given training and instruction in
order to put a stop to this reprehensible practice. The Public Prosecutor's
Office has continued its attempts to limit violations of the right
to liberty occasioned by this interpretation on the part of the members
of the security forces. The Public Prosecutor's Office has instructed
its officials to check every case in order to determine whether or
not pre-trial detention is imposed in accordance with current legislation,
the aim being to put an end to arbitrary detentions.
121. Correcting
such abuses is not always easy, particularly in societies plagued
by high crime rates. Arbitrary detention is on the increase and is
even applauded by ordinary citizens, especially when crime leads to
social unrest. At such times, the police arrest large numbers of people
without having any real grounds, evidence or suspects. In reality,
police actions of this kind have other purposes. Many of them are
shows of force or bravado, representing a response to society's expectations,
rather than serious preventive operations or criminal investigations.
122. Protests
by NGOs and other human rights activists, and the steps taken by government
procurators to combat police abuses are regarded by the police, and
even by broad sectors of public opinion, as connivance in crime or
signs of weakness. It is therefore also important to try to promote
human rights within the culture as a whole. Such a campaign should
be based on the idea that, in a democratic State subject to the rule
of law, there should be no contradiction between policy on crime and
human rights. The requirement to uphold the law and to do everything
necessary to ensure the success of a criminal investigation is perfectly
compatible with the rights and guarantees granted to citizens under
the Constitution, the law and international human rights treaties.
123. Another
form of arbitrary detention occurs when the police fail to report
the arrest. This is known as retención ("holding") or unreported
detention. The Public Prosecutor's Office also intervenes in many
situations of this kind, using its powers under article 60, paragraph
1, of the Public Prosecutor's Office (Organization) Act, "to investigate
arbitrary detentions and take steps to put a stop to them ...".
124. As mentioned
above, the entry into force of the new Code of Penal Procedure will
cushion the negative effects of arbitrary detention and reduce the
risk of torture implied by the excessive period of pre-trial detention,
which, under the new Code, will be reduced to a maximum of 48 hours.
_________
Annexes*
1. Comments
by the Government of Venezuela on the recommendations of the Special
Rapporteur on torture, Mr. Nigel Rodley.
2. Code of
Penal Procedure (official edition, decision No. 003).
_________
* The annexes
are available for consultation in the files of the Office of the United
Nations High Commissioner for Human Rights.