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REPORT
Nº 50/00
I.
SUMMARY
1. The petition alleges the violation by the Venezuelan
Government of the rights protected by the Convention of Mr. Reinaldo Figueredo
Planchart in the investigation and prosecution of charges against him, for the
crimes of misappropriation and embezzlement of funds. The violations
charged are of Article 5 (1), (2) and (4)
(Right to Humane Treatment); Article 8 (1), (2) (b), (d), (f), (h) and (5) (Fair
Trial); and Article 25 (1) (Judicial Protection) in relation to Article 1 (1)
(Obligation to Respect Rights) of the Convention. The Commission was asked to rule on suspension of
execution of the warrant issued for the arrest of Mr. Figueredo, and, in the
event of his conviction, on suspension of his extradition and incarceration
until the Commission decided on the merits of the case. The Government moved for
dismissal on the grounds that domestic remedies had not yet been exhausted. The
Commission disallowed that motion and declared the case admissible on September
28, 1998, during its 100th regular session.
In Report on Admissibility Nº 81/98 the Commission placed itself at the
disposal of the parties with a view to reaching a friendly settlement of the
matter. The petitioner agreed to
that procedure but the Government failed to send any observations to the report
or to reply to the Commission’s offer. By
note of March 8, 1999, the Commission reiterated its offer to the Government of
Venezuela giving it a period of 30 days to reply, further indicating to it that
“if no such reply is received by the deadline set the Commission will continue
to process this case." In
continuing its processing of the case and following an examination of the
factual and legal grounds put forward by the parties, the Commission finds that
the Venezuelan Government responsible for violation of the rights enshrined in
the American Convention that were set out by the petitioner in his complaint of
May 23, 1994, with the exception of the right to humane treatment where the
Government was not found responsible. Consequently,
the Commission recommends that the Venezuelan Government vacate the prosecution
of Reinaldo Figueredo Planchart, rescind the warrant issued for his arrest, and
grant him a new trial with full guarantees of due process.
Furthermore, the Government must provide adequate and timely compensation
to Reinaldo Figueredo Planchart, including just satisfaction for the human
rights violations established herein.
2. On May 23, 1994, the Inter-American Commission on Human
Rights (hereinafter "the Commission") received a petition alleging
violation by the Republic of Venezuela (hereinafter "the Government,"
"the Venezuelan Government" or "Venezuela") of the rights of
Mr. Reinaldo Figueredo Planchart protected in the American Convention on Human
Rights (hereinafter "the Convention").
3. The Government’s reply was received on August 12,
1994. On October 4, 1994 a
questionnaire was sent to the parties with a request that it be filled out.
The replies from the petitioner and the Government were received on
December 16, 1994, and January 2, 1995, respectively.
Additional information arrived from the petitioner on August 26, 1995.
The Commission received the observations of the Government on November 22, 1995. On January 18, 1996, the petitioner submitted to the
Commission a contingent request for Precautionary Measures.
On August 1, 1996, a reply to the Government’s remarks and a
complementary complaint were received from the petitioner.
The Commission received additional information from the Government on
February 6, 1997, and from petitioner on February 20, 1997, and April 20, 1998.
4. On September 28, 1998, the
Commission adopted Report on Admissibility Nº 81/98, which was forwarded to the
Government on October 15, 1998. Through
that report, the Commission placed itself at the disposal of the parties with a view
to reaching a friendly settlement of the matter on the basis of respect for the
human rights recognized in this Convention pursuant to
Article 48 (1) (f) of the Convention and 45 of its Regulations. Accordingly the
Commission granted the parties a period of two months in which to reply to its
offer. By note of December 14,
1998, the petitioner Douglass Cassel thanked the Commission and accepted its
proposals. That note was transmitted to the Government on December 22, 1998.
The Commission repeated its offer to the Government in a note dated March
8, 1999. The Government did not reply to the Commission’s offer of
friendly settlement.
5. During its 104th Regular session,
the Commission examined the instant case and adopted Report Nº 85/99 under
Article 50 of the American Convention on Human Rights.
This report was conveyed to the Government on October 13, 1999. The Government made no observations to the report and failed
to comply with the recommendations of the Inter-American Commission on Human
Rights.
6. The Commission in the course of
its 106th regular meeting again examined the present case and
approved Report Nº 20/00 pursuant to Article 51 of the American Convention on
Human Rights. The report was sent
to the State and the petitioners on March 7, 2000 with the admonition of
confidentiality until the Commission might approve its publication.
The Commission gave Venezuela one month to resolve this situation.
The term expired and the State neither implemented the Commission´s
recommendations nor responded in any way to the report.
Therefore, on April 13, 2000 the Commission agreed to publish this report
and include it in its Annual Report to the General Assembly of the Organization
of American States A.
The petitioners 7.
The complaint asserts that the Venezuelan Government
has violated rights of Reinaldo Figueredo Planchart that are protected by the
Convention. The Supreme Court of Justice ordered Mr. Figueredo arrested for
trial on a charge of misappropriation of funds and embezzlement while he was
Minister of the Presidential Secretariat and Minister of Foreign Affairs. 8.
It is alleged that in the course of that proceeding his
right of defense was violated by the Office of the Comptroller General of the
Republic of Venezuela. That Office conducted a "documentary
investigation" into the use made of budgetary funds assigned to
expenditures for Government security in 1989 and concluded that there was
evidence of commission of the crimes of misappropriation and embezzlement. The
report named Mr. Figueredo as one of the presumed culprits. That document was
the basis of a summary proceeding before a tribunal.
9. It is complained that the Office of the Comptroller
General did not advise Mr. Figueredo that he was being investigated, did not
inform him of the evidence being used against him, gave him no opportunity to
defend himself or to present evidence, and refused him a copy of the report
incriminating him though it had sent it to the Attorney General and to a court,
and did not reply to his request for the opening of an "administrative
inquiry" into the charge against him in accordance with due process of law.
10. The complaint states that the
Attorney General violated Mr. Figueredo’s right of defense by summoning him
informally, arraigning him on criminal charges before the Supreme Court of
Justice on the primary basis of the Comptroller General’s report without
letting him know the evidence on which it was based or giving him an opportunity
to contradict it, and denying him access to the text of the charge and of the
Comptroller General’s report on which the action was based.
11. It is complained that the Supreme
Court of Venezuela violated Mr. Figueredo’s right of defense, of appeal, and
not to be subjected to cruel and inhuman treatment.
12. On May
20, 1993, the
Supreme Court declared that there were sufficient grounds to try then Deputy
Figueredo based on the constitutional provisions for the criminal indictment of
certain public officials (the President of the Republic, Senators and Deputies).
The petitioner states that, on the strength of this ruling of the Court, Mr.
Figueredo was not permitted to know the evidence against him or to defend
himself; that in its decision, based on the report of the Comptroller General's
Office, the Court had ruled that there was evidence of commission of the crimes
of misappropriation and embezzlement--but did not specify what that evidence was
or the crimes for which he was to be tried. The result of the Court's decision
was that Mr. Figueredo was brought to trial, stripped of his parliamentary
immunity, and removed from his position as a Deputy to the Nation's Congress.
13. The Supreme Court decided to try
Mr. Figueredo (along with President Carlos Andrés Pérez and Senator Alejandro
Izaguirre) directly, in a proceeding which rules out appeals. Once the
proceeding was under way, the Court denied Mr. Figueredo access to the evidence
against him, as well as the right to present evidence and enter pleas, and to
take any action in his own defense. That summary phase ended with the issuance
of an order for his arrest without bail.
14. The Court took his testimony in a
secret hearing: the only persons present were the representatives of the
prosecuting attorney and officers of the Court itself. His lawyer was not
allowed to be present. The Court did not permit the defendants to appoint an
attorney or defender, or do anything to state their case to the Court, to submit
evidence or to present any request until the warrants for their arrest had been
issued. The petitioner notes the Court's pronouncement that until that happened,
they could not be regarded as on trial, even though they had each been indicted,
individually and by name, by order of the Court itself.
15. A year after the opening of the
trial the Court ruled that the commission of crimes of misappropriation and
embezzlement had been proven and that there was well-founded evidence of the
guilt of the accused. It ordered that he be held in custody until and during the
actual trial. The petitioner claimed that "there is no charge or evidence
to cast the slightest doubt on my personal honesty and integrity."
16. In addition, the petitioner alleges
that under the law and the jurisprudence of the Court release on bail can never
be granted to any person on trial for crimes under the Law on Protection of
Public Assets, which meant that he would remain in confinement for the duration
of the trial. He also described the dangerous conditions prevailing in
Venezuelan prisons.
17. The petitioner charges that the
Supreme Court violated his right of defense in not permitting him to know what
he was accused of or on what evidence, in not permitting him to appoint a
defender or attorney, or to act, present evidence or pleadings or make petitions
at any stage of the proceeding that prompted the warrant for his arrest, and in
subjecting him to interrogation without the presence of defending counsel or of
any impartial third party.
18. Against the Government's assertion
that the charge and its supporting documents had been delivered to him between
the preliminary proceedings and the investigation, the petitioner maintains that
"at that time the documents were delivered to former President Pérez, but
not to Mr. Figueredo, who had no access to those documents until a year later,
after the investigation."
19. The petitioner complains of
violation of his right to appeal the judgments handed down against him and
"the order that he be subjected to inhumane punishment without even having
been sentenced by ordering his arrest without bail at grave danger to his
physical and moral integrity."
20. In his complementary accusation the
petitioner alleges that the Court's independence "may reasonably be
supposed to be questionable."
21. It is alleged that the Political
and Administrative Chamber of Venezuela's Supreme Court violated the
petitioner’s right to due process.
22. Having found it impossible to
defend himself against the imputations against him in the report of the Office
of the Comptroller General, on November 10, 1993, the petitioner, acting through
his agent, filed a motion for nullification of that report with the Political
and Administrative Chamber of the Supreme Court. At this writing the Chamber has
not ruled on the question even though the procedural deadline for doing so has
run out and despite the effect that such a ruling would have on the trial
itself. On that occasion he filed an appeal for protection ("amparo")
of the constitutional rights violated by that report. Nine months after it was
filed, the appeal for "amparo" was disallowed.
23. The petitioner complains that in
the court proceedings the judges of that Chamber participated in the decision to
order his arrest and failed to pass on the appeals filed. The petitioner also
charges unwarranted delay and denial of justice.
24. In consequence, the petitioner has
asked the Commission to investigate the violation by the Government of Venezuela
of his rights under Article 5 (1, 2 and 4) and 8[1, 2 (b), 2 (d), 2 (f), 2 (h)
and 5], 24 and 25 of the Convention. He calls on the Commission "to order, as an urgent
precautionary measure, suspension of execution of the warrant for my arrest in
order to avert irreparable injury to my physical and moral integrity and to
allow me to come forward at liberty, subject to due assurances and guarantees,
to exercise my right of defense in the proceedings against me, and to advise the
Government of Venezuela accordingly."
25. At the same time, he has asked the
Commission to appeal urgently to the Inter-American Court of Human Rights order
as a precautionary measure "suspension of execution of the warrant for his
(my) arrest in order to avert irreparable injury to his (my) physical and moral
integrity and to allow him (me) to come forward at liberty, subject to due
assurances and guarantees, to exercise his (my) right of defense in the
proceedings against me, and notify the Government of Venezuela
accordingly."
26. Subsequent to his original
complaint, the petitioner filed with the Commission a Contingent Request for
Precautionary Measures in which he requested that, "in the event that the
Supreme Court of Venezuela finds him guilty in the criminal proceeding to which
the present petition relates, to pass a resolution recommending ad
interim precautionary measures."
27. In that eventuality the
precautionary measure requested is as follows:
A
resolution in which the Commission recommends that, if Mr. Figueredo is found
guilty by the Supreme Court of Venezuela in the criminal proceeding to which
this petition relates, his sentence of extradition or imprisonment not be
carried out until the Commission has resolved the serious issues of violations
of due process in this case now pending before the Commission.
28. In his complementary complaint the
petitioner also asks the Commission "to recommend that Mr. Figueredo be
compensated for the damages caused by violation of his rights, including--but
not limited to--loss of employment since the opening of the investigation; to
recommend that Venezuela reform its laws and procedures to guard against a
recurrence of such violations, including--but not limited to--assurance that the
right of defense applies as much in the preliminary proceedings as in the
trial...”
B.
THE GOVERNMENT
29. The Government alleges that the
complaint is inadmissible because the remedies under domestic jurisdiction have
not yet been exhausted.
30. The Government states that
petitioner was not informed of the charge against him because "it cannot be
concluded that the accused must in every case be provided with a copy of the
charge or of its appended documentation."
31. The prosecutor asserts that
delivery of a complete copy of the complaint is compulsory only in proceedings
to determine responsibility for crimes not punishable by death, personal
restraint or penal servitude. "It must be remembered that in this case the
accused was charged with the crimes of misappropriation and embezzlement, for
which the Organic Law on Protection of Public Assets imposes personal restraint
or imprisonment."
32. The Government's position is that
"the action instituted against Citizen Reynaldo Figueredo Planchart is
proceeding in strict compliance with the legal order enshrined in the
Constitution and the laws of the Republic."
33. The guarantees set forth in Article
8 of the Convention are not applicable to the proceeding known as "a
preliminary hearing on merits," which is neither a trial nor "a
proceeding to determine responsibility of any kind," but rather to produce
a ruling on whether a trial should follow. "To give those judicial
guarantees effect in the preliminary hearing would vitiate it and turn it into
something else."
34. The proceeding followed in the
present case was not an "administrative inquiry" but a "judicial
review," the aim of which is “not to punish but to acquire information
from which a punitive proceeding might emerge”:
The
case of Mr. Figueredo is one of involvement by association, owing to the close
connection with the case brought against former President of the Republic Carlos
Andrés Pérez. Because of this particular situation, the fact that the case is
being tried before the highest bench in the Republic is a constitutionally
established functional prerogative that serves as a guarantee deriving
specifically from the need to protect the majesty of the office of President of
the Republic and the incumbent in that august position at the start of the
trial. This guarantee is recognized and established in many constitutional
systems which, even though it may give rise to criminal proceedings that are not
subject to appeal, have nevertheless not in international justice been deemed to
violate human rights even in cases of the trial by association of officials of
lower rank than those protected by this prerogative, such as that of Mr.
Reinaldo Figueredo Planchart today.
35. The Government alleges that Mr.
Figueredo voted without demurral for the lifting of his parliamentary immunity;
that he was given in good time information on the charge against him so that he
could use it in his defense in the "trial," in the current proceeding
against him before the Supreme Court of Justice; that the charge was delivered
to him along with its supporting documents after the preliminary hearing, and
before the opening of the investigation; that "as an additional guarantee
for the accused, he is not being tried by a one-judge court or a chamber, but by
the entire bench – all fifteen members of the Supreme Tribunal of the
Republic.”
36. The Government states that the
preliminary hearing on merits is not a proceeding to determine responsibility,
but an event incidental to the trial on the substance of the charge:
It
is, of course, a single-court trial, but as such is exactly the same as the
single-court trial to which the Venezuelan Government could be subjected if the
Inter-American Commission on Human Rights were to decide to bring action against
it before the Inter-American Court of Human Rights... The hearing on merits does
not determine responsibility, but merely actionability, and is hence incidental
to the trial on the substance of the charge. And it is evident and manifest that
in the trial of the complainant there have been no procedural delays, that is,
no obvious denial of justice, and it is also clear that his lawyers are active
participants in the proceedings…
37. The Government asks the Commission
to disallow the complaint: The Government requests that the complaint presented be
disallowed on the grounds that a) domestic remedies have not been exhausted; b)
the complaint relates to the enjoyment of a privilege of public office, not to
any abridgement of a civil right such as that of defense, which in any case is
guaranteed and being fully exercised by him at present before the Supreme Court
of Justice; c) the assertion that the prosecution's charge and its supporting
documents were not delivered to him in time for use in his defense is false; d)
the dubiousness of his statement that the purpose of the preliminary hearing on
merits was to arbitrarily divest him of his parliamentary status, when it has
been shown that his immunity was lifted with his own affirmative vote, and that
he was then removed by majority vote from the Chamber of Deputies in light of
the findings of the Supreme Court so that he could be called to account for
alleged criminal acts based on the principle of accountability by which citizens
and Government officials are bound; e) his manifest distortion of the procedural
aspects of his trial in deliberately confusing the preliminary stages of the
trial (in which defense is not yet called for) with those parts of the
proceeding devoted to controversy in which he may bring such arguments and
evidence as he deems necessary in defense of his interests; and finally, f) the
unquestionable fact that his lawyers are now acting in full diligence and
publicity, without obstacles of any kind, in a trial that, having proceeded with
all speed and procedural rigor, has now reached the stage when judgment is
pronounced.
38. On February 6, 1997, the Commission
received from the Government a note announcing that on May 30, 1996, "the
Supreme Court of Justice of Venezuela, sitting in plenary, found citizen
Reinaldo Figueredo Planchart guilty of the crime of aggravated generic
misappropriation..." Mr. Figueredo (who was tried in absentia) "was prosecuted for the crimes of aggravated
embezzlement and misappropriation, the trial culminating in the stated verdict,
and there are no other remedies of internal jurisdiction to be interposed
against that decision, because it was handed down by the High Tribunal as
provided in Article 211 of the Venezuelan Constitution." IV.
ANALYSIS A.
Competence of the Commission and formal requirements of admissibility
39. The Commission is competent to
consider the petition in question inasmuch as it concerns violations of rights
recognized in the American Convention. The petitioner may legitimately appear,
and the events alleged in the petition are said to have taken place when the
obligation to respect and enforce the rights established in the Convention was
already in force for the Venezuelan Government[2].
In addition, the Government had already accepted the contentious jurisdiction of
the Inter-American Court of Human Rights when the events occurred[3].
40. The
Commission declared the instant case admissible at its 100th Regular session by
means of Report Nº 81/98 of September 28, 1998.
In the operative part of that report the Commission decided the
following: 1.
To declare the present case admissible. 2.
To notify the Venezuelan Government and the petitioner
of this decision. 3.
To continue its examination of the merits of the case. 4.
To make itself available to the parties for the purpose
of reaching a settlement based on respect for the rights protected in the
American Convention, and to invite the parties to go on record regarding this
possibility within 2 months. 5.
To publish this report and include it in its Annual
Report to the OAS General Assembly.
41. The Government objected, alleging
that domestic remedies have not yet been exhausted, on which basis the
Commission should declare the petition inadmissible. However, the
Commission rejected that argument in its report on admissibility in light of a
note from the Venezuelan Government itself dated February 6, 1997, in which it
stated, inter alia, that on, “May 30, 1996, the Supreme Court of Justice
of Venezuela, sitting in plenary, found citizen Reinaldo Figueredo Planchart
guilty of the crime of aggravated generic misappropriation..." Mr.
Figueredo, who “was tried in absentia,
was prosecuted for the crimes of aggravated embezzlement and misappropriation,
the trial culminating in the stated verdict, and there are no other remedies of
internal jurisdiction to be interposed against that decision, because it was
handed down by the High Tribunal as provided in Article 211 of the Venezuelan
Constitution."
42. Consequently,
the Commission considered
that the requirement of exhaustion of domestic remedies established in Article
46 of the Convention had been met and
declared the instant case admissible.
43. As to
timeliness of presentation, the Commission -in Report Nº 81/98- found that the
petition was lodged within the six-month period laid down in Article 46(1)(b) of
the American Convention and considered that the subject matter of the petition
was neither pending in another international proceeding for settlement, nor was substantially the same as one
previously studied by the Commission or by another international organization. Accordingly, the
requirements set out in Articles 46(1)(c) and 47(1)(d) of the above-cited
international instrument were also met. B.
Points of law raised in the instant case
44. Having
established the positions of the parties and reached a decision on the issues
pertaining to admissibility and the competence of the Commission, the latter
must study the evidence adduced by both parties, in order to determine if the
Government bears international responsibility for the alleged violations of
rights enshrined in the American Convention.
In that context, the Commission deems it necessary first to examine some
of the statements made by the parties in the instant case.
In one of its communications to the Commission, the Government declared inter
alia, "I duly remind you that on May 30, 1996 (...) the Supreme Court of Justice of Venezuela, sitting in
plenary, found citizen Reinaldo Figueredo Planchart guilty of the crime of
aggravated generic misappropriation, categorized in Article 60 of our Organic Law on Protection of Public Assets,
and sentenced him to a term of two years and four months imprisonment and to the
accessory punishments to imprisonment laid out in Article 104 of the same
law."
45. The
Commission does not have authority to issue its opinion on the nature or
seriousness of the criminal offence imputed to the alleged victim.
It takes note of the submissions of the Government in respect of these
points and declares, as it has done on previous occasions, that, "In democratic societies,
where the courts function according to a system of powers established by the
Constitution and domestic legislation, it is for those courts to review the
matters brought before them. Where it is clear that there has been a violation
of one of the rights protected by the Convention, then the Commission is
competent to review.
The Commission has full authority to adjudicate irregularities of
domestic judicial proceedings which result in manifest violations of due process
or of any of the rights protected by the Convention."[4]
46. In light
of these considerations, the Commission will determine the legal consequences of
the facts that it regards demonstrated as being under the framework of its
competence. Furthermore, it will signal whether or not the Government bears
responsibility for violation of the Convention. However, it will not examine the
declarations of the parties on the alleged criminal responsibility of the
supposed victim, which is a matter for the domestic jurisdiction.
47. In that
context it is important to stress that the organs of the American Convention
have competence, pursuant to Article 33 thereof, to determine if the acts or
omissions of any organ of government, the judicial branch included, entail their
responsibility in accordance with the international obligations assumed in good
faith upon ratification of the aforesaid international instrument.[5]
Accordingly, the Commission has full authority to determine if in a given
proceeding whether the judicial guarantees provided in Articles 8 and 25 of the
American Convention were respected. An
assessment as to whether a judicial proceeding satisfies the requirements of
Articles 8 and 25 must be based on the circumstances of each particular case and
on an examination of the proceeding as a whole.[6] C.
Considerations on merits
I.
SUMMARY OF THE DIFFERENT STAGES OF THE TRIAL OF REINALDO
FIGUEREDO PLANCHART
UNDER DOMESTIC JURISDICTION
48. The
record shows that the then-Deputy Reinaldo Figueredo Planchart learned from a
number of news reports in the mass media that the Office of the Comptroller
General of the Republic was conducting an investigation in which he was
implicated in the crimes of generic misappropriation and embezzlement of funds
in February 1989, while he was Minister of the Presidential Secretariat under
the government of then-President of the Republic, Carlos Andrés Pérez.
49. Based on
this information, Reinaldo Figueredo Planchart sent a formal communication dated
May 7, 1993, to the Comptroller General of the Republic.
In reply to that note, the Comptroller General advised Reinaldo Figueredo
Planchart by official letter of May 17, 1993, of an "essentially
documentary investigation" that he had opened ex officio, "for which
no citizen was required to appear or give testimony..." and that he
considered that he had “furnished him with all the information that [he was]
legally able to provide, inasmuch as, by Official Letter Nº 92-2733 dated
December 1, 1992, the Superior Tribunal for the Protection of
Public Assets notified this Office of the
Comptroller General, that the report of November 26, 1992 and its annexes, have
become bound up in a preliminary criminal proceeding and that, accordingly,
their contents must be kept in the utmost secrecy."[7]
50. In a
note of May 26, 1993, to the Comptroller General of the Republic, Reinaldo
Figueredo Planchart requested, inter alia,
that he "order the opening of an administrative inquiry as provided in Article
81 of the Organic Law of the Office of the Comptroller General of the Republic,
based on your express declaration that circumstantial evidence emerged from the
investigation carried out by the Organ over which you preside."
The record shows that this request never received a reply from the
Comptroller General of the Republic.[8]
51. On
November 13, 1992, the Superior Tribunal for the Protection of Public Assets had
also, based on the information reported in the press, opened ex
officio a preliminary inquiry to investigate the presumed commission of a
publicly actionable criminal act. The record shows the testimony given by
Reinaldo Figueredo Planchart, along with his interrogatory conducted by that
tribunal on March 4, 1993. The
record also shows that the aforesaid tribunal did not allow the attorney who was
accompanying Mr. Figueredo to be present during the interrogatory.[9]
Furthermore, it is proven that in its decision on the substance of the
case of May 30, 1996, the Supreme Court of Justice took account of and valued
that interrogatory, stating, inter alia, that "this testimony shows that (...) this
defendant clearly and evidently does not admit any direct guilt whatsoever in
respect of the charges, but rather declares to know nothing about the actions of
the Directors of Administration and Services of the Ministry of the Presidential
Secretariat and of the Interior Ministry. These
submissions by Reinaldo Figueredo Planchart are completely and utterly
false"[10]
The record before the Commission also shows that the Superior Tribunal for
Protection of Public Assets questioned Reinaldo Figueredo Planchart while he
still enjoyed parliamentary immunity in his capacity as Deputy to the Congress
of the Nation.[11]
52. The
investigation of the Comptroller General of the Republic culminated on November
26, 1992, in a report with 11 annexes, which was conveyed to the Superior
Tribunal for the Protection
of Public Assets in response to that
tribunal’s request, inasmuch as it had opened an investigation into the same
matter, and to the Attorney General of the Republic. As the communication from the Comptroller of May 17, 1993,
shows, those investigations were carried out without the testimony of the
suspect and without allowing him access to the report once it was concluded.
53. On March
11, 1993, the Attorney General of the Republic filed ex officio an indictment
and a request for a preliminary hearing on merits with the Supreme Court of
Justice against the then-President of the Republic, Carlos Andrés Pérez and
Congressmen Alejandro Izaguirre and Reinaldo Figueredo Planchart, former
Ministers of the Interior and of the Presidential Secretariat, respectively, for
the criminal offences of generic misappropriation and embezzlement of funds.
54. The
Supreme Court of Justice, sitting in plenary, examined on March 16, 1993, the
request for a preliminary hearing on merits and indictment brought by the
Attorney General of the Republic and decided to refer the respective record to
the Trial Court.
55. The
request for a preliminary hearing on merits and indictment of the Attorney
General of the Republic were admitted on March 17, 1993.
At the prosecutor’s request it was decided to ask the Superior Tribunal
for the Protection of Public Assets for a certified copy of the file of case Nº
92-2713. The Supreme Court, sitting
in plenary, took receipt of those certified copies on March 23, 1993, and
decided to add them to the record.
56. On March
30, 1993, the Supreme Court of Justice sitting in plenary acknowledged receipt
of the records of preliminary proceeding conducted by the Superior Tribunal for
the Protection of Public Assets contained in the file of case Nº 92-2713.
57. The
Commission observes in the record of the case sub
lite copies of the newspapers El
Nacional of May 5, 1993, and of El
Universal of May 6, 1993, setting out the proposed judgment of the Supreme
Court of Justice citing the grounds for prosecuting the persons charged by the
Attorney General of the Republic.
58. The
record shows the decision of the Supreme Court of Justice of May 11, 1993,
denying the request of one of the co-accused, Alejandro Izaguirre, who asked
"very respectfully, that the court order me to be issued with copies of the
prosecutor’s complaint and of its accompanying documents since failure to
comply with such a requirement could result in the absurd circumstance of a
decision issued inaudita altera pars,
in contravention of express constitutional provisions, such as that relating to
the right of defense....”[12]
59. On May
20, 1993, the Supreme Court of Justice, sitting in plenary, declared that there
were sufficient grounds for prosecution of the citizens Carlos Andrés Pérez
Rodríguez, the then-President of the Republic; Alejandro Izaguirre Angelli,
Senator of the Republic, who, at the time of the events, held the position of
Interior Minister; and Reinaldo Figueredo Planchart, Deputy to the Nation’s
Congress, who, at the time of the events, held the position of Minister of the
Presidential Secretariat. On that
same date this court advised the Congress of the Republic of its decision.
60. In its
decision of May 26, 1993, the Supreme Court of Justice decided, inter
alia, "In accordance with the provisions contained in Article 369 of
the Code of Criminal Trial Procedure, the court orders that a complete copy of
the indictment and of its accompanying documents be transmitted to the accused
citizen Carlos Andrés Pérez Rodríguez."
The record does not show that that decision was also adopted in respect
of the other accused persons, one of whom is Reinaldo Figueredo Planchart.
61. On May
27, 1993, the Chamber of Deputies decided to strip Reinaldo Figueredo Planchart
of his parliamentary immunity.[13]
62. On June
8, 1993, the Supreme Court of Justice ordered that the trial underway of Carlos
Andrés Pérez Rodríguez continue in conjunction with that of citizens
Alejandro Izaguirre Angelli and Reinaldo Figueredo Planchart, and with the trial
of those other persons who merited prosecution for the same acts, until final
judgment was rendered. The
Commission observes that the Supreme Court of Justice cites Article 215(1) of
the Constitution as legal grounds to combine the cases of Reinaldo Figueredo and
Alejandro Izaguirre with that of Carlos Andrés Pérez, and to declare itself
competent both to hear and to render final judgment on those cases.[14]
63. The
record shows that on September 29, 1993, during the preliminary hearing stage,
Reinaldo Figueredo Planchart gave informative testimony and was questioned by
the Trial Court of the Supreme Court of Justice.
The Commission also observes that Mr. Figueredo’s defense counsel
accompanied him to the Supreme Court, but was prevented from entering the
courtroom where the interrogatory took place.
Figueredo was questioned by the aforesaid court without the assistance of
his defense counsel.
64. On
November 10, 1993, Reinaldo Figueredo Planchart’s attorneys filed a motion for
nullification and an appeal of “amparo” with the Supreme Court of Justice,
in order legally to invalidate the report of the Comptroller General of the
Republic for having violated his rights of defense and to due process.
In its decision of August 11, 1994, the Political and Administrative
Chamber of the Supreme Court disallowed the
appeal of “amparo,” stating, inter
alia, that "...this Chamber considers that it is impossible and
unfeasible for the Comptroller General of the Republic, in carrying out the
tasks of substantiation assigned to him by the Organic Law on Protection of
Public Assets, to violate the rights of defense, to due process and to a fair
trial, for the precise fact that those undertakings are phases prior to the
start of judicial proceedings in which the participation of the interested
parties goes without saying. Thus
finds the court."[15]
65. On
November 16, 1993, the Supreme Court of Justice denied a request to exclude the
Attorney General of the Republic from the proceedings before that court on the
basis of ensuring a proceeding with full equality for the parties, since the
defense did not have access to the minutes of the preliminary proceeding.
The Supreme Court made clear its interpretation that the preliminary
proceeding is secret and, therefore, the accused has access neither to the
prosecutor’s indictment, nor to the record of the preliminary proceeding, nor
to a defense attorney during that stage of the proceedings. The aforesaid court
said, inter alia, the following:
....in our Code of Criminal Trial Procedure the preliminary proceeding or
inquiry is divided into two parts, phases or stages. The first starts with the
order to proceed (Article 74 of the Code of Criminal Trial Procedure), and is
entirely secret from the person or persons under investigation, but not from the
Judge, the Head Court Clerk, and the clerks, or from the Prosecutor from the
Attorney General’s Office, who is legally required to take part in public
action trials. The second stage or
phase of the preliminary proceeding starts with issuance of the arrest warrant
or of the indictment. The proceeding then ceases to be secret from the criminal
suspect or defendant. Once the
criminal suspect has been detained or the defendant notified, he may then be
informed of the minutes of the preliminary proceedings with the assistance of a
person or attorney of confidence (Article 73 in
fine of the Code of Criminal Trial Procedure).
Thereafter in the proceeding the person under investigation acquires the
legal condition of a party thereto. In
consequence thereof, he shall have access to the record of the preliminary
proceeding and every means of defense that the law provides, the moment the
respective arrest warrant is executed, in accordance with Article 60, clause 1,
paragraph 2 of the Constitution.[16]
Accordingly, this high tribunal cannot approve the request of the
forenamed attorneys because they lack procedural capacity to take part in the
present preliminary proceeding stage. Thus
finds the court.[17]
66. The
record contains a dossier of press cuttings from the newspaper El Universal of April 15 and 30, 1994, in which is published part of
the text of the proposed report of Supreme Court Justice Ismael Rodríguez
Salazar, which contains the warrant for the arrest of Reinaldo Figueredo
Planchart and the other co-accused.
67. On May
10, 1994, the attorneys for Reinaldo Figueredo Planchart filed a petition with
the Supreme Court of Justice in which they denounce the leak and deny the
imputations made by that tribunal through the media.
68. On May
18, 1994, the Supreme Court of Justice ordered the arrest for trial of Reinaldo
Figueredo Planchart and the other co-accused “for the crimes of generic
misappropriation and fraudulent embezzlement of funds, provided for in Articles
60 and 58, respectively, of the Organic Law on Protection of Public
Assets..."[18]
The record shows that that decision makes no allusion to the leaks to the
media or to the petition filed by the accused’s attorneys.
69. On June
9, 1994, the Trial Court of the Supreme Court of Justice decided that,
"having seen the request submitted by the defenders of the accused Reinaldo
Figueredo Planchart, in which they ask that the date and time be set for
presentation of the signed statement of their client, such request is denied on
the ground that the aforementioned accused is not in court and the presentation
of a signed statement is a strictly personal act reserved for the accused."[19]
70. On June
17, 1994, Trial Court of the Supreme Court of Justice issued a ruling in which
it declared the preliminary proceeding concluded.
71. On June
21, 1994, the defense counsel for the accused requested the Trial Court of the
Supreme Court of Justice for a complete ordinary copy of the record of case Nº
0588 and all its annexes, given that said court had declared the preliminary
proceeding concluded on the 17th day of that same month and year.
On June 22, 1994, the aforesaid court stated that "[Having seen the
request submitted by Dr. Carlos Armando Figueredo, in his capacity as
provisional defense counsel for the accused Reinaldo Figueredo Planchart, dated
the 21st day of the present month, the court decides to agree to that
request. Let it be provided
accordingly."[20]
The record shows that this was the first time –following the conclusion
of the preliminary proceeding and the issuance of the warrant for his arrest--
that Reinaldo Figueredo Planchart had access to the proceeding its record.
72. On
November 15, 1994, the Supreme Court of Justice set the public hearing of the
accused for November 22, 1994. Reinaldo
Figueredo Planchart was out of the country.
73. On
February 15, 1995 the Supreme Court of Justice issued an order of attachment of
the property belonging Reinaldo Figueredo Planchart and the co-defendants.
Justice Rafael Alfonzo Guzmán dissented with that decision and declared
to the media, in reference to the attachment order issued by the court,
"that it was more for effect than actually effective, because criminal
offenders of this kind never put their property in their own name; on the other
hand, it is obvious that they possess works of art, corporate stocks, very
powerful corporations that own all kinds of real estate, cash, foreign exchange,
jewelry, none of which need be registered or certified by a notary in order to
be transferred." The aforesaid
Justice further noted, "that these measures are ineffective in this
particular case and in all cases where a crime against public assets is
concerned because precisely this type of offender and this type of crime have
the effect of ensuring that nobody keeps property of any significant value in
their own name, in order to avoid its attachment specifically by this type of
measure."[21]
Justice Guzmán also issued the same statements on Friday, February 17,
1995, on the 8:00 p.m. news program on Canal 10, owned by the company TELEVEN.
74. On March
30, 1995, the attorneys for the defense submitted to the Supreme Court a request
for recusation of the justice who issued statements to the press.
A few weeks after the request for recusation was made, that justice was
elected President of the Supreme Court of Justice.
The recusation was disallowed on May 8, 1995 by Justice Josefina Calcaño
Temeltas, First Vice President of the Supreme Court of Justice.
75. The
record contains a copy of the newspaper El
Nacional of January 25, 1996, which published the transcript of a televised
interview with the then-President of the Republic of Venezuela Rafael Caldera,
who, in reply to question about the possibility of granting a pardon to one of
the defendants, said, "I think that, while there may be a reasonably large
sector who would wish that, the vast majority of the country would regard it as
a kind of fraud, a kind of inconsistency, a failure to recognize the conviction
that it behooves the Supreme Court of Justice to hand down, in accordance, apart
from anything else, with the expectation that has formed in the minds of the
Venezuelan public.”[22]
76. The
record contains a copy of the newspaper El
Nacional of February 1, 1996, which published a statement by the
then-Prosecutor General, Jesús Petit da Costa, which says, inter
alia, that "the pressure on the Supreme Court of Justice is being
exerted by those who (...) lodged and are pursuing a petition with the
Inter-American Commission on Human Rights."[23]
77. The
record contains a copy of the newspaper El
Nacional of April 19, 1996, its front page headline reading, inter
alia: "Justice Luis Manuel Palis proposes four years imprisonment.
The Justice in charge of submitting the proposed decision for approval by
the other members (...) finds that there was aggravate misappropriation of
funds, but dismissed the charges of embezzlement. (...) Reinaldo Figueredo would
be sentenced to two years and four months imprisonment....”[24]
Justice Luis Manuel Palís was the judge who proposed the decision in the
case of Reinaldo Figueredo Planchart.
78. In its
decision of May 30, 1996, the Supreme Court of Justice found Reinaldo Figueredo
Planchart
guilty
of the crime of aggravated generic misappropriation categorized in Article
60 of the Organic Law on Protection of Public Assets,
which act was committed in the place, manner and time that have been shown, and
sentenced him to a term of two years and four months imprisonment in the penal
establishment that the National Executive Branch designates, and to the
accessory punishments to imprisonment laid out in Article 104 of the Organic Law
of Protection of Public Assets, which are: disqualification from participation
in government for the duration of the conviction, and disqualification for the
same amount of time from public office or posts. By the same token the court
sentences the aforesaid accused to provide restitution, reparation or
compensation for the damages inflicted on public assets, once the corresponding
amount has been established by the expert appraisal that was ordered performed
to that end. All the foregoing is
in accordance with the provisions of Articles 60, 100 and 104, of the Organic
Law for Protection of Public Assets, in respect of Article 37 of the Criminal
Code, and the heading of Article 43 of the Code of Criminal Trial Procedure.[25] II.
SCOPE OF APPLICATION OF THE AMERICAN CONVENTION IN THE PROSECUTION OF
REINALDO FIGUEREDO PLANCHART IN DOMESTIC JURISDICTION
79. In a
note of October 4, 1994, the Commission submitted for the consideration of the
parties a questionnaire with several questions relating to the trial in
Venezuela of Reinaldo Figueredo Planchart.
Thus, the Commission asked, "In accordance with Article 8 of the
American Convention, what is the scope of application of judicial guarantees in
the instant case? Do they apply,
for instance, to preliminary proceedings or to administrative proceedings?”
80. The
Government, citing Article 215 (1) and (2) of the Constitution, as well as
Articles 146 to 154 of the Organic Law of the Supreme Court of Justice, declared
that a preliminary hearing on
merits is neither a trial nor a proceeding to determine responsibility of any
kind. The
Government added that the Supreme Court of Justice does not institute judicial
proceedings designed to incriminate or exonerate a person of a given act and
that this stage is a functional prerogative established to protect high-ranking
government officials against reckless lawsuits.
Consequently, the Government concluded that the judicial guarantees
enshrined in the American Convention do not apply during the stage of
preliminary hearings on merits before the Supreme Court of Justice.
81. With
respect to whether the aforementioned judicial guarantees apply to
administrative proceedings, the Government declared that the American Convention
only applies to administrative proceedings for imposing punishment.
The Government added that in Venezuelan law there is an accepted trend
that judicial guarantees are applicable in administrative proceedings aimed at
imposing punishments for administrative violations or offences; in particular,
the principle of freedom from ex post facto laws on violations or offences, the
principle of due process and, within that, the principle of the right of
defense. Nevertheless, the
Government also stated that in this case the judicial guarantees enshrined in
the Convention do not apply on the ground that the administrative proceeding
instituted by the Office of the Comptroller General of the Republic was not an
administrative inquiry but a judicial review. The Government indicated that
aim of the latter is not to punish but to acquire information from which a
punitive proceeding might emerge.
The Government further stated that since, in the opinion of the Office of
the Comptroller General, that judicial review uncovered evidence of civil and
criminal responsibility, which is not a matter for that office to resolve, the
said agency referred the findings of that review to the Superior Tribunal for
the Protection of Public Assets and to the Attorney General of the Republic.
82. The
petitioners, for their part, stated that the guarantees contained in Article 8
of the Convention should apply both to administrative proceedings and to
preliminary hearings on merits before the Supreme Court of Justice; particularly
if the latter might result in punishments of a criminal nature.
According to the petitioners, the Constitution and administrative law in
Venezuela provide for due process, which has been denied in practice by the
intervening administrative and judicial organs.
The Government’s submission that the Office of the Comptroller General
of the Republic is an organ whose functions are exclusively administrative,
which lacks the jurisdictional powers of the Judicial Branch, and which, for
that reason, is excused from the duty to respect rights relating to judicial
guarantees, is inconsistent with the obligations of the Government of Venezuela
under the American Convention and its own domestic laws.
The petitioners add that the Office of the Comptroller General carried
out a "documentary investigation," on the basis of which the accused
was deprived of his right of defense and his right to a fair trial in accordance
with the guarantees of due process. The
petitioners say that the rights violated by the investigation conducted by the
Office of the Comptroller General were as follows: a) right of defense, b)
access to an independent and impartial tribunal, c) right to due process, and d)
access to the records of the proceeding.
83. Having
summarized and studied the positions of the parties, the Commission must
determine whether in the case sub lite
the guarantees of due process [Articles 8 and 25] enshrined in the American
Convention are applicable to the preliminary stages of the judicial proceeding
instituted against the supposed victim. In
connection therewith, the Commission observes that neither Article 8 nor Article
25 of the Convention establish at which stage of a proceeding to substantiate a
criminal accusation the criminal suspect is entitled to exercise his rights of
defense and to due process.
84. Nevertheless,
the Inter-American Court has interpreted Articles 8 and 25 of the Convention as
provisions that do not
recognize any judicial guarantees, strictly speaking, but that contain the procedural requirements that should be
observed in order to be able to speak of effective and appropriate judicial
guarantees under the Convention.[26]
85. By the
same token, the European Court of Human Rights, in analyzing Article 6(1) of the
European Convention, which is similar to Article 8(1) of the American
Convention, stated that "In
a democratic society within the meaning of the Convention, the right to a fair
administration of justice holds such a prominent place that a restrictive
interpretation of Article 6 para. 1 (art. 6-1) would not correspond to the aim
and the purpose of that provision."[27]
This approach is consistent with the emphasis that the Inter-American
Court gives to due process within the context of a democratic society.[28] 86. By the s |