Venezuela: Criminal Proceeding Against Prominent Jurist Violated Due Process Guarantees, UN Human Rights Committee Finds

GENEVA (15 December 2021) – Venezuela violated a jurist’s rights to be tried by an independent tribunal and to the presumption of innocence, the UN Human Rights Committee said on Wednesday.

The Committee’s findings concern jurist Allan Brewer Carías, who was prosecuted in 2005 for his alleged involvement in the drafting of what was known as the "Carmona Decree". This decree ordered the establishment of a transitional government after a coup d’état in Venezuela in April 2002, which saw President Hugo Chávez ousted from office for 47 hours before he was restored to power.

According to Brewer Carías, he received a call in the early hours of 12 April 2002 from Pedro Carmona Estanga, the opposition leader installed by the military, who requested his urgent legal opinion. Brewer Carías said he was taken to the Fort Tiuna military complex in Caracas where he was shown the draft decree, with which he completely disagreed and played no part in drafting.

In January 2005, Brewer Carías was charged with “conspiracy to alter the Constitution through violent means” for his role in the “discussion, preparation, drafting and presentation” of the Carmona Decree. During the criminal proceedings in the following months, according to Brewer Carías, all the prosecutors and judges involved in his case were temporary appointments by the Government. Two Appeal Court judges who overturned a travel-ban on other co-defendants, and another judge who ordered the prosecutor to release the case file to the defendant’s lawyer, were all suspended after their decisions in favour of Brewer Carías and the other co-defendants.

Brewer Carías left Venezuela for the United States in September 2005. In June 2006, the Provisional Supervisory Judge issued an indictment against him and ordered him to be placed in pre-trial detention. After repeated and unsuccessful attempts to challenge his indictment, Brewer Carías announced that he would not return to Venezuela until his right to due process could be ensured. Since then, the jurist has been unable to return to his country for fear of being arrested and detained.

He brought his complaint to the Human Rights Committee in December 2016.

“It is clear from the information provided by Mr. Brewer Carías that the five judges and the four prosecutors who acted in the judicial proceedings were temporary appointments and three judges were in fact removed immediately after taking decisions that could be considered to benefit Mr. Brewer Carías’ case,” said Committee member Carlos Gómez Martínez.

In view of this, the Committee found that Brewer Carías was not afforded the right to be tried by an independent tribunal, in violation of International Covenant on Civil and Political Rights to which Venezuela is a State party.

“Judicial authorities need to be able to work independently and free from undue interference or influence from the executive agencies, and this entails having stability in their posts for carrying out their duties properly. It is of extreme importance to the Committee that the right to be tried by an independent tribunal encompasses the independence of prosecutors," Gómez Martínez added.

The Committee also found that Brewer Carías’ right under the Covenant to be presumed innocent was also violated, highlighting public statements by President Chávez and also a book by the then Attorney General that claimed he was involved in writing the decree.

The Committee requested that Venezuela declare the criminal proceedings against Brewer Carías null and void, that he be awarded adequate compensation. It also called for the State to take steps to prevent the recurrence of such violations.

The full decision of the Committee is now available online.

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