Message: Hilda Mariolin Hernandez Colmenares and Francisco Arturo Guerrero Sanchez against the Bolivarian Republic of Venezuela. Message No. 456/2011. The decision was adopted by the Committee against Torture on May 15, 2015.
In 2011, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Bolivarian Republic of Venezuela.
Subject matter: Torture and enforced disappearance of the victim in custody.
Substantive issues: torture and cruel, inhuman or degrading treatment; the obligation of the State party to take effective measures to prevent torture; conditions of detention and treatment of persons deprived of their liberty in order to prevent any cases of torture; the obligation to conduct a prompt and impartial investigation; and the right to receive compensation.
Legal positions of the Committee: The Committee recalls the special obligations of States parties as guarantors to ensure respect for the rights of prisoners under the Convention and the prevention of torture, since they are under strict control by the prison administration. Thus, States parties should take the necessary measures to prevent the use of torture against persons under their control. The Committee recalls that enforced disappearance involves numerous human rights violations and non-compliance by the State party with the obligations set out in the Convention, and that it in itself constitutes a form of torture or inhuman treatment contrary to the Convention against the disappeared person or may pose such a threat to members of his family (paragraph 6.4 of the Decision).
The Committee has addressed the issue of enforced disappearances in a number of concluding observations. See, for example, its concluding observations on the combined fifth and sixth periodic reports of Mexico (CAT/C/MEX/CO/5-6, para. 12); on the initial report of Rwanda (CAT/C/RWA/CO/1, para. 14); on the initial report of Turkmenistan (CAT/C/TKM/CO/1, paragraph 15); on the combined third and fourth periodic reports of Sri Lanka (CAT/C/LKA/CO/3-4, paragraphs 8 and 9); on the fourth periodic report of Colombia (CAT/C/COL/CO/4, paragraphs 11 and 17) and on the initial report of Chad (CAT/C/TCD/CO/1, paragraphs 14 and 17).
The Committee recalls that States parties have an obligation to conduct prompt and impartial investigations in cases where there are reasonable grounds to believe that an act of torture has been committed (paragraph 6.8 of the Decision) (Communication No. 269/2005, Ali Ben Salem v. Tunisia, decision adopted on 7 November 2007, paragraph 16.7.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the authors' allegations that, after an unknown person informed them about the murder of Mr. Guerrero Lares in the Central Prison of Venezuela (hereinafter - the Central Prison), on September 8, 2009. They visited the correctional facility, but were unable to meet with Mr. Guerrero Lares or receive any information about his whereabouts. According to the applicants, additional evidence indicates that Mr. Guerrero Lares was harassed by a group of CTV prisoners who killed, dismembered and buried him on the prison grounds with the connivance of the prison administration and the Bolivarian National Guard. Despite this information, as well as the fact that the authors immediately informed the authorities about the disappearance of Mr. Guerrero Lares, a comprehensive investigation into the possible use of torture against him has not yet been conducted. In addition, no effective and sufficient measures have been taken to establish his whereabouts and fate. On the other hand, the Committee takes note of the testimony of the prison administration in Court No. 2, indicating that Mr. Guerrero Lares "fled" (escaped) from the Central Television Station, however, without explaining on what basis such a conclusion was made (paragraph 6.3 of the Decision).
The Committee takes note of the information that on 8 and 9 September 2009, the authors reported the disappearance of Mr. Guerrero Lares to the Director of the Central Television Station and the Bolivarian National Guard. On 1 and 13 October 2009, the authors requested the Prosecutor General's Office and the Office of the Prosecutor General for Fundamental Human Rights, respectively, to investigate the disappearance of their relative while serving his sentence in the Central Prison and his possible murder by prison inmates, as well as the possible involvement of the prison administration and employees of the Bolivarian National Guard. In this regard, they noted that according to the testimony of other prisoners, Mr. Guerrero Lares was harassed by a group of prisoners due to the fact that he was aware of the illegal activities of this group with the complicity of a number of officials. In accordance with the statement of the Prosecutor General's Office in Court No. 2, the investigation of the possible enforced disappearance of Mr. Guerrero Lares was entrusted to the Prosecutor's Office No. 3 (paragraph 6.5 of the decision).
At the same time, the Committee notes that, according to the information contained in the case file, having not found Mr. Guerrero Lares on the territory of the Central Prison, the prison administration limited itself to stating that he had escaped from the correctional institution, without providing any additional information or evidence and without conducting a comprehensive investigation of his possible escape and specific circumstances, who led to him. Despite the petitions submitted by the authors and the court's decision No. 2 of December 4, 2009, the fate of Mr. Guerrero Lares is still unknown; The authorities did not provide any information on possible measures that could be taken to establish his whereabouts, and in the event of his death, his remains were not returned to his family members. In addition, it has not been established whether the administration of the Central Television Station or the Bolivarian National Guard bears any responsibility for the incident. In particular, no measures were taken to find out whether the disappearance of Mr. Guerrero Lares was related to attempts to punish or intimidate him due to the fact that he was aware of the alleged illegal activities of a group of prisoners with the complicity of the administration, as stated by the author of the communication to the Office of the Prosecutor General for Basic Human Rights. In the absence of any refutation by the State party, the Committee concludes that Mr. Guerrero Lares has been deprived of legal protection since 7 September 2009, and that his enforced disappearance in the specific circumstances of the present case constitutes an act of torture within the meaning of article 1 of the Convention (paragraph 6.6 solutions).
The Committee takes note of the authors' allegations under articles 2 and 11 of the Convention that, despite the situation of violence in prisons, the State party did not respond adequately and did not take any legislative, administrative, judicial or other effective measures to prevent the use of torture in prisons, in particular in order to Mr. Guerrero Lares was not a victim of torture by other prisoners of the Central Prison Service with the connivance of the prison administration... The Committee... Recalls its comments on the State party's second periodic report, in which it calls on Venezuela to take measures to prevent violence among prisoners, as well as by prison staff, and to strengthen independent mechanisms for the inspection of places of detention. In the absence of comments from the State party on the control mechanisms in the Central Prison System and other measures to prevent violence among prisoners and the use of torture against them with the connivance of the administration, the Committee concludes that the State party is responsible for violations of articles 2 and 11 of the Convention (paragraph 6.7 of the decision).
The Committee notes that the authors were informed that the investigation into the possible enforced disappearance of Mr. Guerrero Lares was entrusted to the Prosecutor's Office No. 3, and that on February 25, 2010, an inspection of the Central Office was carried out with the participation of employees of the Prosecutor General's Office and the Commission of the Bolivarian National Guard. The Committee does not find in the information provided any information about other investigative actions by the authorities, despite the fact that there were reasonable grounds to believe that an act of torture had been committed. Despite the efforts of the authors of the communication, in the almost six years since the disappearance of Mr. Guerrero Lares in the Central Committee, the State party has not conducted a prompt, impartial and effective investigation into reports of torture and his enforced disappearance while serving his sentence in prison, and the perpetrators have not been brought to justice (see para. 6.6 above). In the light of the information available in the case and in the absence of comments from the State party, the Committee considers that the State party has not fulfilled its obligations under article 12 of the Convention (paragraph 6.8 of the decision).
The Committee takes note of the authors' claims that the damage inflicted on Mr. Guerrero Lares was not compensated in accordance with article 14 of the Convention. In view of the failure to conduct a prompt and impartial investigation, as well as the allegations submitted by the authors and the facts cited in the preceding paragraphs, the Committee concludes that the State party has failed to comply with its obligations under article 14 of the Convention (paragraph 6.8 of the decision).
The Committee's conclusions: the facts presented indicate a violation of paragraphs 1 of articles 2 and articles 11, 12 and 14 of the Convention, considered separately and in conjunction with article 1, in respect of Mr. Guerrero Lares, as well as article 16 in respect of the authors of the communication (paragraph 7 of the decision).