Message: Vincenzo Scarano Spisso against the Bolivarian Republic of Venezuela. Message No. 2481/2014. The opinion was adopted by the Human Rights Committee (hereinafter referred to as the Committee) March 17, 2017
In 2014, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to the Bolivarian Republic of Venezuela.
Subject of the message: imprisonment of the mayor for disobeying a court decision.
Substantive issue: arbitrary detention, conditions of detention, the right to a fair trial, the right to participate in political life.
The Committee's legal position is that any forced detention, whether on criminal charges or under any other regime, must be carried out on the basis of the law and in accordance with the procedures prescribed by law. Thus, the regime of deprivation of liberty should not blur the boundaries of the criminal justice system by providing measures equivalent to criminal punishment in the absence of applicable protection guarantees. In particular, the imposition of an extremely severe punishment in the form of imprisonment for contempt of court without sufficient explanation and without independent procedural guarantees is arbitrary... The Committee recalls that the concept of "arbitrariness" should be interpreted more broadly, taking into account the elements of unacceptability, injustice, unpredictability and non-observance of procedural guarantees, along with the elements of expediency, necessity and proportionality (paragraph 7.4 of the Considerations).
The Committee recalls that... the right [to a fair and public hearing by a competent court], recognized for all persons in the context of the consideration of any criminal charges against them, also applies to acts that are criminal in nature and which, regardless of their qualification in domestic law, should be considered criminal, taking into account their purpose, nature or severity (paragraph 7.8 Considerations).
In cases where the highest court of a country acts as the court of first and only instance, the lack of the right to review by a higher court is not compensated by the fact that the person is tried by the Supreme court of a State party; such a system is rather incompatible with the Covenant, except if the State party concerned has made a reservation in this regard. In view of the criminal nature of the punishment imposed on the author, the Committee considers that in this case the author's inability to obtain a review of the sentence constitutes a violation of article 14, paragraph 5, of the Covenant (paragraph 7.11 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's complaints that the prison sentence imposed on him for disobeying a court decision on the application of temporary measures to protect constitutional rights was taken in violation of his right to personal freedom and the right not to be arbitrarily arrested or detained under article 9 of the Covenant. The author claims that the State party conducted a trial before the Constitutional Court and imposed a prison sentence on him, without resorting to criminal proceedings, and that thereby the Constitutional Chamber of the Supreme Court exceeded its powers, since it was responsible for conducting investigations on suspicion of committing crimes and, if necessary, initiating proceedings The Prosecutor's Office is responsible for the criminal court... [D]The State party stated that the sentence for disobeying a court order was imposed on the author in the exercise of the Constitutional Chamber's powers to impose penalties and was dictated by the failure to comply with the interim measures ordered on March 12, 2014, and not by criminal prosecution. Despite the fact that article 31 of the Organic Law on the Protection of Constitutional Rights and Guarantees does not specify which body is competent to establish the fact of insubordination and under which procedure, transferring the case to the criminal court would take too much time and could be ineffective, given that the prosecutor's office could terminate the investigation, and the criminal court - dismiss the case (paragraph 7.2 of the Considerations).
Author... He claims that article 31 of the Organic Law on the Protection of Constitutional Rights and Guarantees, on the basis of which he was sentenced, regulates cases of non-compliance with final decisions concerning the merits of applications for the application of the amparo procedure (a remedy for the protection of constitutional rights characteristic of a number of legal systems.), and not temporary interim measures; that the executive judge responsible for securing his conviction denied the author the procedural guarantees and privileges he requested, including consideration of an alternative sentence, review of the sentence and psychosocial assessment, citing that it was not a "normal criminal trial"; that the mentioned highway (A lawsuit was filed against the author and the Deputy director of the Municipal Police in connection with the alleged failure to dismantle the barricades erected by residents of the municipality of San Diego, in particular on the Barbula-Yagua bypass highway. The petition was filed against the municipal authorities, despite the fact that the specified highway does not belong to their jurisdiction, but is under the economic jurisdiction of the central government and under its control.) was not under the jurisdiction of municipal authorities; and that it was not possible to implement temporary measures, since after the date of the relevant court order, there were no barricades left on public roads in San Diego, as confirmed by defense witnesses, employees of the Prosecutor's Office and the Office of the Public Defender (paragraph 7.3 of the Opinion).
The Committee notes that in this case, both parties agree that Venezuelan law provides for a normal criminal procedure in which the author could be prosecuted for the crime of disobeying a court decision, although the State party has stated that this procedure could take too long and prove to be an ineffective means the provision of interim measures of protection, and that both parties also indicated that the regulatory provision on the basis of which the author was convicted of insubordination does not specify either the competent authority, neither is the procedure for establishing the fact of a criminal act... The Committee notes that the State party has not refuted the author's claims that the normative provision on which the Constitutional Chamber relied in its decision regulates cases of non-compliance with final decisions on the application of amparo procedures, rather than decisions on interim measures, and that the executive judge responsible for securing the conviction refused the author the procedural measures he requested guarantees and privileges, since it was not a matter of ordinary criminal proceedings. The State party has also failed to convincingly refute the author's claims that it is impossible to implement these interim measures (paragraph 7.5 of the Opinion).
The Committee considers that the decision to sentence the author to imprisonment for 10 months and 15 days and to remove him from the office of mayor has no proper legal basis and that the State party has failed to prove that the measure taken to achieve the intended purpose was reasonable, necessary and proportionate... The Committee considers that the author's detention was arbitrary within the meaning of article 9, paragraph 1, of the Covenant (paragraph 7.6 of the Opinion).
The Committee takes note of the author's complaints under article 10 of the Covenant that he was held in solitary confinement in a penal isolation unit of a military prison without communication with the outside world, in a cell without windows, without access to other public areas, that communication opportunities were severely limited and that he was subjected to personal searches. The State party disputed the author's claim about access to public spaces and the current mode of communication, but did not comment on the remaining allegations, in particular in the light of the author's statement that the conditions of detention of the author and other prisoners in block B were recorded in an act drawn up by the Director of the Prosecutor's Office for the Protection of Fundamental Rights and the Director The National Military Disciplinary Center, after which the practice of incommunicado detention of prisoners was interrupted for two days, and then resumed with renewed vigor, and the conditions of detention have worsened. ... The Committee considers that the author's detention in the described conditions constitutes a violation of article 10 of the Covenant (paragraph 7.7 of the Opinion).
The Committee takes note of the author's complaint of a violation of his right to a fair and public hearing by a competent court (paragraph 7.8 of the Opinion).
Taking into account the author's observations, which have not been challenged by the State party, that, in accordance with the provision on the basis of which the conviction was handed down, criminal liability is imposed for non-compliance with final decisions on the amparo procedure, and not decisions on the adoption of interim measures, as well as the fact that this provision does not specify which judicial instance and in what order is competent to establish the fact of a criminal act, the Committee concludes that, That the trial against the author and the resulting conviction by the Constitutional Chamber for disobeying an order for interim measures constitute a violation of the author's right to a hearing by a competent court, as set out in article 14, paragraph 1, of the Covenant (paragraph 7.9 of the Opinion).
With regard to guarantees of due process, the Committee takes note of the author's allegations, which have not been refuted by the State party, that he was not personally notified of the order issued on 17 March 2014 to schedule a hearing for 19 March in connection with alleged disobedience to the court's decision to take interim measures and that he had time to prepare a defense It's only been a day. The author also pointed out that of the 131 evidence presented to him, only six were attached to the case, and one of them was only partially reproduced in the courtroom. In this regard, the Committee considers that the facts described indicate a violation of the author's right to the minimum procedural guarantees set out in article 14, paragraph 3, of the Covenant (paragraph 7.10 of the Views).
The Committee takes note of the author's complaint that his case was prosecuted by a single instance, namely the highest judicial authority in Venezuela (paragraph 7.11 of the Views).
The author claims that the Constitutional Chamber of the Supreme Court arbitrarily suspended him from his duties as mayor, despite the fact that, in accordance with article 87 of the Organic Law on Municipal Government Bodies, such decisions fall within the competence of the municipal Council. The State party stated that the existence of a final verdict is one of the grounds for complete absence from office, which in turn justifies the removal of the mayor from office in accordance with the above-mentioned provision. Having concluded that the author's detention on the basis of a sentence imposed for disobeying a judicial decision to take interim measures of protection was arbitrary and that his trial was conducted in violation of the guarantees of due process provided for in article 14 of the Covenant, the Committee considers that the author's removal from office as mayor and the actual The loss of the right to vote and to be elected constitutes a violation of article 25 (b) of the Covenant (paragraph 7.12 of the Opinion).
The Committee's conclusions: the facts reveal a violation of articles 9; 10; paragraphs 1, 3 and 5 of article 14; and paragraph (b) of article 25 of the Covenant (paragraph 8 of the Opinion).