Until proven otherwise Violations of due process against persons prosecuted for demonstrating Resumen ejecutivo
From the analysis of 37 proceedings in criminal courts in Metropolitan Caracas and Altos Mirandinos (a sector of the State of Miranda) involving 399 people arrested during protests since February 2014, the following findings are presented: The legislation applied against individuals apprehended during demonstrations is, in itself, restrictive to the right to peaceful demonstration, as it qualifies as a violent certain expressions of protest that are valid in a democratic society. The hardening of sanctions on the reform of the Penal Code served to criminalize protest with a deterrent effect on demonstrators at the prospect of being charged with offenses which carry prison sentences. Demonstrators were charged almost invariably with the same criminal types: public incitement and obstruction of roads. In some cases demonstrators were also charged for possession of incendiary substances or jointly indicted on charges of resisting arrest and insulting officials, by interpreting that any resistance to authority is simultaneously an affront to the officer. In cases of mass arrests, nor prosecutors, nor the courts, adjusted charges to the requirement of criminal proceedings to individualize the alleged action, that is, establishing a
direct relationship between a behavior and alleged perpetrator, limiting to the formulation of generic accusations that violate basic principles of due process. Case files examined do not record the crime or crimes that allegedly originated detention. In cases where those arrested were able to exercise the right to speak in court, they expressed that they never were notified of the reasons for their arrest. Although flagrante delicto was alleged in most cases, the presentation in court comfortably exceeded the time established by the criminal proceedings in these cases. The right to defense was constrained in various ways passing through the impossibility of meeting between detainees and their lawyers during the 36 or 48 hours in preventive detention, lack of time and resources to prepare a defense, brief interviews just 10 minutes from the beginning of the hearing and sometimes, no listings held with the respective court and courtroom location, which resulted in some cases imposing public defenders, without the knowledge of the families, lawyers or detainees themselves. Although many detainees showed visible signs of injuries at the time of their transfer to court, these were rarely taken into account by the judges, who did not order opening
investigations into the matter and, where ordered, the same have not shown any progress. In cases of evident injuries, there was constant claiming that the victim had assaulted an officer, with no record of the identity of the alleged officer, neither of injuries. Sometimes, doctors assigned to detention centers put on record the injuries, without following the protocols necessary to determine the origin of these and the possible perpetrators.  Most of the detainees were subjected to regular reporting regime before courts, but with the passing of days,
judges began using the figure of the guarantors, which prolonged the time in detention. Some detainees were banned to participate in demonstrations without proper motivation of this illegal and unconstitutional measure.  The existence of a single decision in involving deprivation of liberty and one case of unconditional release accounts for arbitrary detentions and irregular subsequent processes, since in 80% of cases, it has been requested and / or agreed dismissal of the causes.
Conclusiones y recomendaciones Venezuela has been progressively restricting the right to peaceful demonstration, through the creation of security zones (2002) that cover about 30% of the territory of the country, and by the definition of crimes associated with demonstrations (reform of the Penal Code), such as the closure of roads, with severe penalties that carry prison and facing participants in demonstrations to the possibility of being imprisoned or being subjected to alternative security measures, with the ever present threat of repeal. The criminalization of certain behaviors associated with protests is increasingly closing the scope of what is considered a peaceful demonstration.
of public officials and detainer of explosive substances, which include considerable penalties, when sentences are accumulated, and they are applied indiscriminately in recent years. The analysis of the files revealed the violation of periods used by the authorities to detain citizens, obstruction of legal assistance before being presented to a court, the refusal of granting sufficient time to receive information of the charges that had been indicted, as well as insufficient time to prepare the defense. Likewise, the use of precautionary measures alternative to prison, the severity of which corresponds to the criminalization of behaviors associated with peaceful protest, even the prohibition of the exercise of this right, without motivation.
The sharp separation between criminal justice and full respect for human rights, has led to the imposition of criminal types, as public incitement, obstruction of roads, resisting arrest, insulting the honor
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As for the observance of the principles and procedural lapses in many cases it was found that, after the arrests were made, the accused were presented outside the periods prescribed by law and were unable to receive advice from lawyers of their trust.
La mayor prueba de la arbitrariedad de las aprehensiones practicadas y de los procedimientos penales iniciados, se refleja en que el Ministerio Público ha realizado como acto conclusivo el sobreseimiento de la causa en el 80% de los casos de aprehendidos, por falta de elementos para poder llevar a cabo acusación formal por los delitos precalificados en la primera audiencia. The greatest proof of the arbitrariness of the arrests and criminal proceedings initiated, is reflected in the fact that the Public Ministry has performed, as conclusive act, the dismissal of the charges in 80% of cases, due to lack of evidence to carry out indictment for the crimes prequalified in the first hearing.
To the absence of mechanisms for prevention of torture that was identified in a previous report, new elements are added after the analysis of court files that constitute obstacles to the investigation and punishment of allegations of torture and cruel treatment along the judicial process, pointing to the impunity of the cases. It was also verified that conducting forensic examinations was exceptional. In some cases a medical examination was performed by a professional belonging to the agency responsible for the arrest; in those cases, evidences of injuries were described without determining the origin and circumstances thereof, nor deepening into alleged responsibilities or fulfilling the obligation of alert the relevant bodies for conducting the respective investigation
In consideration of these findings, the following recommendations are made: Review and repeal of regulations that restrict the right to peaceful demonstration in a democratic society and, in particular, those that criminalize the protest through an extension of what is considered as violent. Correct the practice of the Public Ministry to criminalize protesters aggravating the qualification of alleged behaviors by invoking crimes referred to in the Organic Law against Organized Crime and Financing Terrorism. Adjust imputation processes, where they are necessary, to the principle of individualization of crimes allegedly committed, and refraining from making generic allegations. Ensure strict compliance with procedural lapses and other guarantees of due process and declare
Once brought before the courts, both the Public Ministry and the courts ignored the complaints of mistreatment or torture, becoming accomplices for physical damage to the apprehended. When the signs of abuse were visible and obvious, the authority responsible for the aarrest claimed use of force in response to an alleged attack by the victim, which came to be seen as aggressor, without recording the supposed attacked, or the injuries they suffered.
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the nullity of all proceedings not adjusted for these guarantees. Ensure detainees the right to defense at all stages of the process, from the time of arrest, as well as access to a lawyer of their choice. Provide detainees and their lawyers, time and resources needed to prepare the defense, including private interview. Train all forensic medical personnel as well as professionals of medical services in detention centers in the understanding and management of the provisions of the Istanbul Protocol for research and documentation of allegations of mistreatment and torture. Undertake ex officio inquiries aimed at determining responsibilities in execution, concealment and failure to report violations of the right to physical integrity, accelerate the procedure of the requested investigations. Providing victims of torture and mistreatment due guarantees against intimidation. Approve the dismissal of all cases against protesters, including not only those initiated in February 2014, but those that are pending for more than five years ago, when the criminal justice began to be used against protesters.
Centro de Derechos Humanos Universidad Católica Andrés Bello UCAB. Urb. Montalbán, Av. Teherán, Edf. Cincuentenario, piso 5 Caracas 1020- RIF- J-00012255-5 Tel. 0212-407-4434 cddhh@ucab.edu.ve cdhucab@gmail.com http://w2.ucab.edu.ve/cddhh.html http://www.facebook.com/cdh.ucab @CDH_UCAB The full report can be downloaded (Spanish only) at: http://w2.ucab.edu.ve/tl_files/CDH/Lineastematicas /Hasta%20que%20se%20demuestre%20lo%20cont rario%20FIN.pdf
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