INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RESOLUTION 15/2020
Precautionary Measure No. 23-20 Arrest and Preventive Detention Center of Cabimas regarding Venezuela (“Cabimas Prison”) February 6, 2020 Original: Spanish
I. INTRODUCTION
1. On January 8, 2020, the lnter-American Commission on Human Rights (“the lnter-American Commission,” “the Commission” or “the IACHR”) received a request for precautionary measures filed by Carlos Alberto Nieto Palma as General Coordinator of “Una Ventana a la Libertad” (“the applicants”), urging the IACHR to request that the Bolivarian Republic of Venezuela (“the State” or “Venezuela”) take the measures necessary to protect the rights of the persons deprived of their liberty (“the detainees” or “the beneficiaries”) at the Arrest and Preventive Detention Center of Cabimas, better known as “Cabimas Prison” (Retén de Cabimas). According to the information provided, the men and women that are deprived of their liberty in that Center are currently at risk in Venezuela.
2. In accordance with Article 25 of the Rules of Procedure, the Commission requested information from the State on January 10, 2020. To date, no communication has been received from the State. The applicants submitted additional information on January 17, 2020.
3. Upon reviewing the submissions of fact and law by the applicants, the Commission considers that the information shows prima facie that the persons identified as proposed beneficiaries appear to be in a serious and urgent situation and that their rights are at risk of irreparable harm. Consequently, pursuant to Article 25 of its Rules of Procedure, the Commission requests that Venezuela: a) immediately adopt the necessary measures to protect the life and personal integrity of the proposed beneficiaries. These measures must be adopted by the State, taking into account the different conditions of the persons who are deprived of their liberty, in particular, pregnant women and those who are mothers; b) adopt the relevant measures to adapt the described situation to the applicable international standards regarding treatment of persons who are deprived of their liberty, which may include confiscating all weapons which are found in the possession of the inmates, reducing overcrowding and improving the conditions of detention, providing medical care to those who require it, having qualified and sufficient personnel to ensure adequate and effective control, custody and surveillance of the center, separating convicted persons from those who are not convicted, among other measures; c) consult and agree upon the measures to be adopted with the representatives of this precautionary measure; d) report on the measures taken regarding the investigation of the alleged facts which gave rise to this resolution, so as to prevent such events from reoccurring.
II. SUMMARY OF ALLEGED FACTS SUBMITTED BY THE APPLICANTS
4. The Arrest and Preventive Detention Center of Cabimas, better known as the “Cabimas Prison,” is located in La Misión region, Ambrosio parish of the municipality of Cabimas, in the state of Zulia. In Venezuela, preventive detention centers, despite failing to meet the requirements to detain persons for a period of over 48 hours, have allegedly become permanent spaces where persons are deprived of their liberty for years. In these spaces, the applicants have indicated that corruption and open and public operation of prison mafias headed by negative leaders of this facilities, known as “Pranes,” acting in
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complicity with the officers in charge of their custody, have made this one of the largest centers of violence and corruption of the country dedicated to weapon trafficking, drugs, and the influx of cellular phones used to extort and abduct.
i. Detention conditions
5. The applicants stated that the infrastructure of the center was built to work as a slaughterhouse for animals. Subsequently, it was allegedly used to accommodate persons deprived of their liberty from the seven municipalities which make up the Eastern Coast of Lake Maracaibo, in western Venezuela. The center is allegedly divided into six cellblocks: Cellblocks A, B, C (male cellblocks); Cellblock D (female cellblock); Cellblocks for police officials, where both men and women allegedly share the space; and an isolation area for those critically ill with tuberculosis. The administration, custody and maintenance of the space are allegedly responsibility of the Government of the state of Zulia, by means of the Secretariat of Internal Security and Public Order.
6. The applicants stated that the remand facility was built for a population of 100 persons deprived of their liberty and, according to the latest non-official count which was allegedly performed by the leaders of the cellblocks, there are currently 1073 reported inmates. The population of the center is said to have gone from 500 to 1250 in a matter of weeks and, since then, it has allegedly been consistently overcrowded. The applicants further stated that between 2017 and 2018, the ammount of inmates exceeded 2000. In May 2018, case revision plans were allegedly carried out and the highest number of releases were carried out in compliance with precautionary measures: 400 persons, according to official data. To date, there are no official reports regarding this matter.
7. In 2019, the center reportedly started with a population of 1800 inmates. During a visit from the Ministry for Correctional Services (Ministerio de Servicios Penitenciarios) allegedly 1419 inmates were counted for mid-year and, in December, a reported 1073 were registered. The inmates affirmed that no “mass liberties” were granted, but that the amount of evasions and escapes had increased. In 2019, the Remand facility reportedly acquired public relevance due to the deaths by tuberculosis of its inmates and the possession of weapons that the “Pranes” have, who fight not only for the control of the cellblocks but also for the trade extortion, car theft, charging for vacunas [vaccines against kidnapping] and the distribution of fuel in the Eastern Coast of Lake Maracaibo which are all carried out from that Center.
8. From 2017, there have been reports regarding the death of those deprived of their liberty due to tuberculosis, and no timely response has been given by the Secretariat of Internal Security and Public Order of the Zulia Government, which is the body the Remand facility is assigned to. The Regional Secretariat of Health has not given any response either. There are reportedly 100 inmates at risk of death due to the lack of timely medical care and the impossibility of receiving medical treatment. All of them reportedly present with some level of malnutrition or tuberculosis.
9. In view of managing the situation, the board of the prison institution reportedly built a 4x4m2 annex in the back area of the facility, where 23 ill persons have been purportedly confined. That space is reportedly surrounded by mountains of garbage, sewers for wastewater, sewers for human waste, flies and rats. The structure is said to consist of blocks and slabs of concrete, with a window with bars on one side and a grate as the main entrance. There are allegedly no urinals, showers, or pipelines for drinking water; therefore, they relieve themselves in a makeshift toilet in a corner of the isolated cell. They reportedly bathe on the rare occasions they have access to water in the corner of that cell. They report the lack of proper ventilation, despite being directly exposed to the sun, temperatures above 35 degrees and the heat that comes from three makeshift cookers just a few feet from the cells. Both the “Pranes” and the administration of the preventive detention center allegedly decided to keep them locked up to avoid flees
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through the perimeter fences which do not have an electrified fence nor any other protection mechanism to dissuade them from jumping. At least 10 inmates reportedly have their body full of red spots and rashes.
10. In cellblocks A, B, C, the female annex, and the police areas there are also persons deprived of their liberty who suffer from malnutrition or tuberculosis, and some inmates are even pregnant. The symptoms of all the inmates coincide: shortness of breath, constant swelling of the feet, fast weight loss, constant fevers and dry cough, and some even spit phlegm with blood. Allegedly, 13 inmates have died due to not receiving medicines or medical care in a timely manner.
11. Diets are purportedly precarious. There is reportedly no water, and inmates depend on their visitors or have to pay to be able to bathe or drink water. It was further reported that administration has helped by providing the isolated ones with a large 20-liter water container at least once a week. The maintenance of the infrastructure is allegedly funded by family members. The remand facility has no gas by pipeline; therefore, the inmates cook with gas cylinders, electric stoves or, if these are not available, with gas tubes in the back of the prison. When electricity rationing is in place, which is allegedly common in the area, there is no way to cook and they resort to making a campfire in the backyard or near the block cells of the isolated. The “Pranes” have allegedly acquired energy generators, but for personal use only.
12. In the detention center, there are reportedly five pregnant women. In a population of 75 women in total, at least 30 are not receiving an adequate diet. The applicants have indicated that 5 of them may have tuberculosis; however, they have not undergone a medical examination. During 2019, there were two alleged births which were assisted by the inmates themselves as they did not have a transportation unit or the help of external security nor the corresponding authorities.
ii. Acts of violence
13. The applicants indicated that in the remand facility no activity or action is carry out without being authorized by those who have the firearms and the grenades. In March of 2019, during the first outage, the first conflict between the three “Pranes” of the remand facility allegedly started, due to a difference between those in block cells A and C. The applicants further claim that, since then, they “have sworn to kill each other.” Félix Enrique Finol Mavarez, who is 24-year-old and led cellblock A at that time, was reportedly overthrown on March 10, 2019 at 8.30 a.m. The applicants have provided the following testimony:
The opposing side found out that there weren’t many weapons there and they attacked him. He went upstairs, and that’s where he got shot in the face three times and fell. Already on the court, they shot him seven more times in the stomach. The projectiles also reached Raúl Mea, one bullet hit him in the face and left him blind, and the other is said to have knocked out all his teeth. According to the testimony of an inmate, it was stated that “Now they got a measure for him and he was sent home.”
14. About 15 inmates purportedly took advantage of the chaos to escape. Seven of them were allegedly located and killed in a shoot-out with the CPBEZ (Zulia state police). Neither the Secretariat of Internal Security and Public Order nor the administration of the detention center reportedly identified the dead or issued an opinion on the events of that day. The general blackout in Venezuela and Zulia purportedly prevented the confrontation from transcending. As from this incident, the “Pranes” of each cellblock had reportedly started to acquire their own electrical generators, to increase the caliber of their fire arms, and to buy more grenades and gas to generate electricity during power outages to be able to continue with their parties during the weekend. These parties are attended by family members, friends, prostitutes, etc.
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15. The applicants state that during the 8 following months, the “Pranes” started to acquire weapons. Cellblock A entered three six-shot rifles, three revolvers, two grenades and half a dozen guns. The applicants confirmed the presence of the weapons during a walk around the cellblocks. The potential and the caliber of the weapons increase depending on the proximity to the “Pranes” but are generally between one and three. In the general entrance to the cellblocks, two revolvers were located, and inside some guns can be seen. However, long guns and the grenades are reportedly taken out when one of the leaders is in the area. The custody is allegedly comprised of between 8 and 10 men who organize themselves as a safety ring around the president of the cellblock. The ones furthest from the president have machetes or knifes, followed by revolvers, Glocks, rifles, shotguns and grenades, all brand new.
16. In mid-2019, the National Anti-Extortion and Kidnapping Command (CONAS) reportedly started receiving reports of extortions in the area. The number of victims had increased drastically in the previous four months and the CONAS had allegedly intensified investigations by intercepting phone calls. The applicants claimed that the death threats to a group of shopkeepers were coming from the prison cells. On November 11, 2019, the military was present during a “controlled payment” of an extortion in the immediate vicinity of the prison institution. It is reported that a grenade was thrown from the inside of the prison institution. The shrapnel from the grenade is said to have injured one of the officials. The militaries allegedly guarded the entrance until the end of November 2019 when, due to the insistence of the family members and the protests of the ill, inmates were once again allowed visits and the entrance of food and water. One of the militaries stated: “The national and regional governments were asked to authorize entry in order to requisition and find the responsible party. We are yet to receive the order of approval.” The applicants indicated that, as they never received authorization, the militaries simply left the detention center.
17. Subsequently, the “Pranes” or leaders reportedly forced the persons deprived of liberty in the remand facility to protest. On November 17, 2019 from 8.00 a.m. to around 3.00 p.m. the inmates of cellblocks A, B, C and the female annex went upstairs to the roof of the center to demand restitution of the visitation hours, the entry of food and water, the demilitarization of the surroundings of the detention center, the definite suspension of closing of the prison institution and medical care for the ill. There were banners and those who suffered from malnutrition were shown before cameras. After the restitution of visitation hours, everything calmed down. There were no medical programs, no entry of medication, and no transportation of the ill in critical condition.
18. On December 22, 2019, a new dispute arose between the “Pranes.” According to investigations, the leader of cellblock B started the attack. During the shoot-out, the head of one of the leaders of cellblock C was impacted by a bullet. On this occasion, the bodies were allegedly left outdoors in the backyard of the detention center for over 12 hours. In this incident, 6 persons died. A female inmate who was in the female annex at the time was also injured and required surgical intervention in the Cabimas General Hospital “Dr. Adolfo D'Empaire.” She is still recovering from her injury. In response to this attack, the “Pranes” of cellblock C reportedly organized their counterattack on December 30, 2019 at approximately 5.00 p.m. First, the grenades exploded, followed by a hail of gunfire. The injured were reportedly taken to the back of the prison institution. The “Pranes” then tried to set Cellblock B, where about 200 inmates were confined, on fire. Available testimonies state:
One of the shooters took shelter in the women’s area. The men of the opposing side went up to the roof through the police cellblock. They intended to attack the cellblock with grenades when one of the evangelic pastors intervened. There were children there, visitors, women’s families. He had to intervene so they would let the innocent go.” She also indicated that, on more than one occasion, there have been
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shootings in that cellblocks as they believe the women hide the enemy. “The detonations made the officers in the guard station run”.
19. After 40 minutes, a video of the officers of the CPBEZ taking shelter behind the front wall of the detention center started to go around on the Internet. One of the officers who were filming stated the following while holding his phone to film: “A lot of bullets. They’ve taken control. They’ve thrown four grenades.” Minutes later, a video of a crowd engulfed in a cloud of smoke circulated on the web. The applicants claim that the person who filmed stated: “I burned your cellblock”. About 20 hours later, a commission of the Body of Scientific, Penal and Criminal Investigation (CICPC), Cabimas sub-delegation and a sub-delegation of the Bolivarian National Intelligence Service (SEBIN) arrived at the prison center. The former removed the corpses and the latter a grenade which had not gone off. The detectives reportedly set four bodies on the blankets. The bodies showed signs of injury by firearms, knifes, and burns. Two of them had been purportedly decapitated. Five other people were reportedly injured. The officers have not indicated the severity of the injuries nor to which cellblock the injured belonged to.
20. After this incident, Prosecutors for Fundamental Rights of the Public Ministry, the [female] director of the remand facility and the commissions of the security forces arrived. The detainees state that they did not belong to either faction or that they were not armed. There were no sanctions or confiscations. An attached testimony stated: “They scolded the officers in the guard station. As revenge, these officers suspended our visits on January 1, 2020. During that afternoon, they started collecting up to 300 bolívares in cash to let some family members and some food in.”
21. The applicants stated that tension persisted as the survivors had sworn revenge. In cellblock B, there was still much ammunition, and the “Pranes” reportedly worked together with two former inmates of the Cabimas prison who escaped in 2016. According to officers of the CONAS, these former inmates had not broken their ties with those deprived of their liberty in the remand facility. Current inmates allegedly coordinated extortions, grenade attacks and homicides on the Eastern Coast of Lake Maracaibo with these former inmates.
iii. Measures adopted aimed at the definite closing of the Arrest and Preventive Detention Center of Cabimas
22. Lastly, the applicants stated that from December 2017, the Governor Omar Prieto and his office have been diligently working with the Ministry of Prison Affairs and the President, towards the goal of shutting down the prison or “permanently closing” the remand facility. In 2019, the governor publicly stated the following:
“IMPORTANT! I hereby request, on a presidential level, the complete shutdown of the Cabimas prison. This action is part of the fight against criminal gangs which extort and charge for vacunas [vaccines against kidnapping] on the premises, which infringes upon the country’s peace. In this battle, we will WIN!” Published on September 22, 2019, on his Twitter account @OmarPrietoGob.
23. After the violent events towards the end of December, 2019 where 10 persons deprived of their liberty died and 6 others were wounded, the Secretariat of Internal Security and Public Order of the state of Zulia allegedly intervened from January 6, 2020 for a period of 30 days. It was decided to terminate the employment of those who had in their charge the administration of the detention center and other officers in charge of external custody of the prison. According to Zulia’s Secretary of Government, “they were not carrying out their responsibilities to the best of their abilities.” In the same way, a revision of the cases of
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those deprived of their liberty was going to be carried out to determine how many of them are convicted in order to coordinate their relocation to other detention facilities with the Ministry of Prison Affairs.
24. On January 6, 2020, the regional authorities allegedly visited the center. On January 8, 2020, a health care day and a legal workshop promoted by State Government took place. The applicants stated that some of the inmates received medical care; also, they had been promised that some measures would be taken. Subsequently, two inmates that were ill died. The first one died on January 7, 2020 while in the isolation area without any treatment. The second one was held in cellblock C and was not receiving medical treatment. His body was found on the morning of January 13, 2020.
25. After the violent acts in December, the governor reportedly reaffirmed his decision to close the detention center. The applicants stated that, to date, there is no project for the construction of a new prison facility in the state of Zulia and, therefore, closing this center would collapse the other detention centers. The conditions of other detention centers are reportedly identical or similar to the aforementioned situations, combined with the fact that the majority of the inmates in this center do not yet have a final judgement and that their judicial processes are still being handled by the courts of this state which means that relocating them in a new prison facility outside of Zulia would completely stop their processes.
III. ANALYSIS OF THE ELEMENTS OF SERIOUSNESS, URGENCY AND IRREPARABLE HARM
26. The precautionary measures mechanism is part of the Commission’s functions of overseeing Member State compliance with human rights obligations established in Article 106 of the Charter of the Organization of the American States (“OAS”). Morevover, the Inter-American Convention to Prevent and Punish Torture establishes in its Article 17 a commitment to “inform the Inter-American Commission on Human Rights about the legislative, judicial, administrative and other measures that have been adopted in application of this Convention.” These general functions are set forth in Article 18 (b) of the Statute of the IACHR. Moreover, the precautionary measures mechanism is enshrined in Article 25 of the Rules of Procedure, by which the Commission grants precautionary measures in serious and urgent situations, where such measures are necessary to prevent an irreparable harm.
27. The Inter-American Commission and the Inter-American Court of Human Rights (“the Inter- American Court” or “I/A. Court H.R.”) have established repeatedly that precautionary and provisional measures have a dual nature, both protective and precautionary. Regarding the protective nature, these measures seek to avoid irreparable harm and to protect the exercise of human rights. Regarding the precautionary nature, precautionary measures are intended to preserve a legal situation while it is being considered by the IACHR. The precautionary nature has the purpose of preserving legal situations while the bodies of the Inter-American System analyze a petition or case. Their objective and purpose are to ensure the integrity and effectiveness of an eventual decision on the merits, and, thus, avoid any further infringement of the rights at issue, a situation that may adversely affect the effet utile of the final decision. In this regard, precautionary or provisional measures allow the State concerned to comply with the final decision and, if necessary, implement the ordered reparations. For such purposes, according to Article 25(2) of the Rules of Procedure, the Commission considers that:
a. “serious situation” refers to a grave impact that an action or omission can have on a protected right or on the eventual effect of a pending decision in a case or petition before the organs of the Inter- American System;
b. “urgent situation” refers to risk or threat that is imminent and can materialize, thus requiring immediate preventive or protective action; and
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c. “irreparable harm” refers to injury to rights which, due to their nature, would not be susceptible to reparation, restoration or adequate compensation.
28. The Commission recalls that the facts supporting a request for precautionary measures need not be proven beyond doubt; rather, the information provided should be assessed from a prima facie standard.1 On another note, it should be specified that the IACHR is not called upon to make any determinations on the criminal liability of the inmates neither to determine in this opportunity whether there have been violations of due process. The Commission focuses its analysis only on the requirements of seriousness, urgency and risk of irreparable harm set forth in Article 25 of its Rules of Procedure, which can be resolved without making any determinations on the merits of the case.
29. As regards the requirement of seriousness, the Commission recalls, as stated by the I/A Court H.R., that regarding persons deprived of liberty, the State is in a special position of guarantor, as the prison authorities exercise a strong control or command over the persons who are in their custody.2 This is due to the relation and unique interaction of subordination between the person deprived of liberty and the State, characterized by the particular intensity with which the latter can regulate their rights and obligations, and by the very circumstances of imprisonment, which prevent persons deprived of liberty from satisfying on their own a series of basic needs essential for the development of a dignified life.3 Among the positive obligations to keep the detained person in the enjoyment of their rights,4 the following can be highlighted: i) the adoption of protection measures concerning possible aggressions or threats from public authorities or even from other inmates5; ii) the separation of inmates by categories6; iii) the adoption of measures to prevent the presence of weapons in prison facilities7; and iv) the improvements in detention conditions.8
30. Specifically in the framework of protection measures dictated by the bodies of the Inter-American System, concerning persons deprived of their liberty, it has been taken into account, among other aspects, “the deficient conditions of internal security and control,”9 the unacceptable detention conditions related
1 In this regard, see I/A Court H.R. Matter of Villagers of the Miskitu Indigenous People Communities of the North Caribbean Coast Region regarding Nicaragua. Extension of Precautionary Measures. Order of the Inter-American Commision on Human Rights of August 23, 2018, Considerandum 13; I/A Court H.R, Matter of the children and adolescents deprived of their liberty in the “Complexo do Tatuapé” of the Fundação CASA. Request for extension of provisional measures. Provisional Measures regarding Brasil. Order of the Inter-American Court of Human Rights of July 4, 2006. Considerandum 23. Available [in Spanish] at http://www.corteidh.or.cr/docs/medidas/febem_se_03.pdf 2 I/A Court H.R. Case Mendoza et al. v. Argentina. Preliminary Exceptions, Merits and Reparations. Judgment of May 14, 2013. Series C No. 260, para. 188. Also, see: IACHR, Report on the human rights of persons deprived of liberty in the Americas, December 31, 2011, para. 49 3 IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, December 31, 2011, para. 49 et seq. 4 I/A Court H.R, Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations and Costs. Judgment of May 30, 1999. Series C No. 52, para. 61. See also: IACHR, Report No. 41/99, Case 11.491, Merits, Minors Detained, Honduras, March 10, 1999, para. 125 5 I/A Court H.R, Matter of the Socio-Educational Internment Unit regarding Brazil. Resolution of Precautionary Measures of November 20, 2012, considerandum 18. 6 I/A Court H.R, Matter of the Mendoza Prisons regarding Argentina. Order of Provisional Measures of June 18, 2005, considerandum 11. 7 Ibidem 8 Ibidem 9 I/A Court H.R, Matters of certain prisons in Venezuela. Penitentiary center of the western central region. Uribana prison. Resolution of provisional measures of February 13, 2013, Considerandums 10 and 14. See also: IACHR, Resolution 5/2016. Precautionary measure No. 393-15. Matter detained in “Punta Coco” regarding Panama, February 25, 2016, para. 21; and Resolution 39/2016. Precautionary Measure No. 208-16. Matter of the Criminal Institute of Plácido de Sá Carvalho regarding Brazil, July 15, 2016, para. 9
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to the level of overcrowding,10 the lack of medical care in alleged cases of severe diseases11 or bad physical conditions,12 insufficient or inadequate diet,13 lack of water availability,14 and lack of own places to sleep.15
31. Regarding the analysis of this matter, since 2016, the Commission has noted that the situation of persons deprived of their liberty in Venezuela is not only critical, but one of the most serious on the continent,16 which has worsened even more in the context of political, economic and social crisis.17 As regards the preventive detention centers in Venezuela, the Comission has learned that these are spaces designed to keep detainees for a maximum period of 48 hours, until they are brought to the courts; however, inmates stay in these centers for an indefinite period of time.18 In that sense, the current situation of the the Cabimas Prison is framed in an exceptional context which the State of Venezuela is going through.
32. In the specific case of the Center, the Commission notes with serious concern that the aforementioned risk factors are identified in this request at least since 2016. According to the available information, it is currently observed that the center's infrastructure was not initially intended for a detention center, it was adapted from a center that was built to be an “animal slaughterhouse”; a situation of overcrowding, insofar as the center reportedly has a capacity for 100 persons deprived of their liberty, but is said to currently house 1073 persons, which represents a percentage greater than 1000% of its capacity; episodes of violence that have been increasing since the 2016 also due to the increase in the number of persons deprived of liberty, with acts of violence having been recorded in March, November and December 2019; persons deprived of their liberty, mainly the so-called “Pranes” of the cellblocks, reportedly have in their possession and control specific areas of the centers and lead the trade of firearms such as shotguns, revolvers, grenades and guns, with the presence of bladed weapons such as machetes and knives also being reported; the lack of effective security measures aimed at preventing armed clashes between inmates, resulting in deaths and injuries, including persons who allegedly do not participate in such acts of violence; according to the applicants, persons deprived of their liberty in the center have been accused of being involved in the extortion complaints in the zone, and there exists an alleged collusion between specific inmates, such as “Pranes,” and security staff of the center, which was described by the applicants as a node of corruption.
10 I/A Court H.R, Matter of certain Venezulan prisons. Penitenciary center of the central occidental region. Uribana prison. Resolution of provisional measures of February 13, 2013, Considerandums 10 and 14. See also: IACHR, Resolution 8/17. Precautionary Measure No. 958-16. “Hogar Seguro Virgen de la Asunción” regarding Guatemala, March 12, 2017, para. 17; and Resolution 39/2016. Precautionary Measure No. 208-16. Criminal Institute of Plácido de Sá Carvalho regarding Brazil, July 15, 2016, para. 9 11 IACHR, Resolution 39/2016. Precautionary Measure No. 208-16. Matter Criminal Institute of Plácido de Sá Carvalho regarding Brazil, July 15, 2016, para. 9 12 IACHR, Resolution 5/2016. Precautionary Measure No. 393-15. Matter Detained in “Punta Coco” regarding Panama, February 25, 2016, paras. 18 and 21 13 I/A Court H.R, Matter of the persons imprisoned in the "Dr. Sebastião Martins Silveira" Penitenciary in Araraquara, São Paulo regarding Brazil. Resolution of the I/A Court H.R of September 30, 2006, Considerandums 13, 16 y 21. See also: IACHR, Resolution 31/2016. Precautionary Measure No. 496-14 and PM-37-15. Matter of six police stations located in the department of Lomas de Zamora and La Matanza regarding Argentina, May 12, 2016, para. 25 14 IACHR, Resolution 5/2016. Precautionary Measure No. 393-15. Matter Detained in “Punta Coco” regarding Panama, February 25, 2016, para. 18 15 I/A Court H.R, Matter of the persons imprisoned in the "Dr. Sebastião Martins Silveira" Penitenciary in Araraquara, São Paulo regarding Brazil. Resolution of the Inter-American Court of Human Rights of September 30, 2006, considerandums 13, 16 and 21. See also: IACHR, Resolution 43/2016. Precautionary measure No. 302-15. Matter of adolescents deprived of liberty at the Center for Socio-Educational Attention of the Adolescent (CASA) Cedro of the State of São Paulo regarding Brazil, July 21, 2016, paras. 13 and 14. 16 IACHR, Country Report. Democratic Institutionality, Rule of Law and Human Rights in Venezuela, 2017, para. 389. Available (in Spanish) at http://www.oas.org/es/cidh/informes/pdfs/Venezuela2018-es.pdf 17 Ibidem 18 IACHR, Country Report. Democratic Institutionality, Rule of Law and Human Rights in Venezuela, 2017, para. 394.
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33. Similarly, the Commission identifies that there are reportedly inmates with some level of malnutrition and tuberculosis who do not have access to adequate and timely medical care, some of them are at risk of death and other inmates have already died. Although an isolation area has been allegedly set, where 23 persons ill with tuberculosis remain, the information available is sufficient to assess that they are in improvised conditions, unhealthy and inadequate to treat their illnesses. In turn, the Commission notes that the food is allegedly precarious, the kitchen depends on each inmate, and they do not have access to water. Given these conditions, the inmates depend heavily on the support of their relatives, payment of money, or the “Pranes” that have their own equipment.
34. Indeed, the Commission observes that the persons in the Center are exposed to a myriad of risk sources that have been maintained over time without having been effectively mitigated by the competent authorities to date. Firstly, due to the structure deficiencies of the center, the alarming overcrowding index, and the difficulties in caring for the ill persons. Moreover, the lack of medical care, unhealthiness and lack of an adequate diet also contribute to several impacts on their rights. Secondly, given the multiplicity and intensity of the acts of violence registered, mainly as a result of the presence of “Pranes” or heavily armed persons, who purportedly exercise de facto control within the enclosure, and the lack of response from the State concerning this phenomenon. In relation to the previous point, the Commission also notes that the increase in the overcrowding index reportedly coincides with a greater frequency of violent episodes, with an emphasis on the months of March, November and December 2019. In addition to the above, the Commission is aware that there are inherent difficulties in reporting this situation to the competent authorities, which aggravates their risk situation, since according to the applicants there is a collusion between specific inmates and the prison officers.
35. As regards the conditions identified at the remand facility, the Commission recalls that, according to the international human rights law, the overcrowding of persons deprived of their liberty could constitute in itself a form of cruel, inhuman and degrading treatment, in violation of the right to personal integrity and of other human rights.19 In consideration of the abovementioned, it should be borne in mind that Venezuela is a party to the Inter-American Convention to Prevent and Punish Torture since its ratification on August 26, 1991. In accordance with Articles 1 and 6 of that Inter-American instrument, the States Parties are obliged to prevent and punish torture and cruel, inhuman or degrading treatments or punishments within the scope of their jurisdiction and, in turn, Article 17 provides for a commitment to “inform the Inter-American Commission on Human Rights af any legislative, judicial, administrative or other measures they adopt in application of this Convention.”
36. Following this logic, the Commission reiterates as part of its powers over the States, those provided for in Article 18 (b) of its Statute, which include “to make recommendations to the governments of the States on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of those rights.” In this way, the precautionary measures mechanism has had a progressive development to become a mechanism for the protection of the Inter-American System, in
19 IACHR, Report on the Use of Pretrial Detention in the Americas, OEA/Ser.L/V/II, Doc. 46/13, December 30, 2013, para. 290. See also: IACHR. Truth, Justice and Reparation: Fourth Report on Human Rights Situation in Colombia, 2013, Chapter VI (G); IACHR. Report of the Inter-American Commission on Human Rights on the situation of Persons Deprived of Liberty in Honduras, para. 67; IACHR. Report on the Human Rights of Persons Deprived of Liberty in the Americas. para. 460. In this regard, see also: Inter-American Court of Human Rights. Pacheco Teruel et al. v. Honduras Case. Merits, Reparations and Costs. Judgement of April 27, 2012. Series C No. 241, para. 67(a); European Court of Human Rights, Case of Ananyev et al. v. Russia, Judgement of January 10, 2012 (First session of the Court), paras. 144-148; UN, Commission Against Torture, Report on Brazil prepared by the Committee under Article 20 of the Convention, and response from Brazil, CAT/C/39/2, published on March 3, 2009, para. 189; UN, Working Group on Arbitrary Detentions, Report on Mission to El Salvador, A/HRC/22/44 /Add.2, published on January 11, 2013, para. 96.
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compliance with its conventional and statutory obligations and emanating from the referred function of the IACHR to ensure compliance with the international commitments assumed by the States Parties.
37. On another note, the Commission considers it relevant to speak out on the situation of women deprived of their liberty, given that the differentiated impact to which they are exposed deserves a special analysis. Under the Convention of Belém do Pará,20 to which Venezuela is a party, violence against women21 includes that perpetrated by any person and that occurs in a health facility or anywhere else.22 In accordance with the aforementioned Convention, the States have the duty to adopt, by all appropriate means and without delay, policies aimed at preventing, punishing and eradicating such violence,23 especially taking into account situations of vulnerability, as in the case of pregnant women.24
38. As the Commission has stressed, “[u]nder the Inter-American System, barriers limiting access to maternal health services may amount to affecting the right of women to physical, mental, and social integrity,”25 which in turn can cause impacts of an irreparable nature. Furthermore, as it has been reiterated in the framework of other international protection measures, it is reaffirmed the obligation of the States to take into consideration the special care that pregnant and breastfeeding women deprived of their liberty should receive during their detention.26 Additionally, the authorities should protect women against all forms of discrimination and violence, especially when they are in state custody, which is why they should be separated from men and monitored by female staff.27
39. Taking these elements as a whole into account, the Commission considers that the [female] proposed beneficiaries are at risk, particularly those who are pregnant. In addition to acts of the violence and threats likely to impact all of them, in the context of a pregnancy, the lack of healthiness and medical care in the current detention conditions represent an added risk factor. It should be added that some of them may even have acquired tuberculosis. Thus, it is especially worrying that during 2019 there were two births that were assisted by the [female] inmates themselves and without having a transfer unit nor any support from external security or the competent authorities, a situation that has reportedly not been addressed to date either. For the Commission, such events therefore place these women in a situation of special vulnerability, which calls for immediate protection.
40. The Commission regrets the lack of response from the State of Venezuela to the request for information that was made on January 10, 2020. Although the lack of response from the State does not imply per se the granting of precautionary measures, it does prevent the Commission from obtaining information from its part on the situation of the persons in the identified detention center, hence it is not possible to disprove the applicants’ allegations or identify information on measures effectively adopted by the authorities to mitigate the alleged risk. In that sense, the Commission observes that the situation abovedescribed has not been effectively overcome, and on the contrary, it has continued over time and increasing in intensity.
20 Inter-American Convention to Prevent, Punish and Eradicate Violence against Women “Convención de Belém do Pará”, made in the City of Belém do Pará, Brazil, on June 9, 1994. Available (in Spanish) at http://www.oas.org/juridico/spanish/tratados/a-61.html 21 Convención Belém do Pará, art. 1: “[…] Violence against women should be understood as any action or conduct, based on gender, that causes death, damage or physical, sexual or psychological suffering to women, both in the public and private spheres”. 22 Convención de Belém do Pará, Art. 2. 23 Convención de Belém do Pará, Art. 7. 24 Convención de Belém do Pará, Art. 9. 25 IACHR, Access to maternal health services from a human rights perspective, para. 39. 26 Matter of the Penitentiary Center of the Andean Region regarding Venezuela. Order of the Inter-American Court of Human Rights of September 6, 2012 27 Ibidem and Matter of the Penitentiary Center of the Central Western Region: Uribana Prison regarding Venezuela. Order of the Inter-American Court of Human Rights of February 2, 2007
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41. In view of the abovementioned, taking into account the exceptional context that the State of Venezuela is going through and the alleged events of risk, the Commission considers that from the applicable prima facie standard the existence of a serious risk to the rights of life, personal integrity and health is sufficiently proven. At the time of making this determination, the Commission considers as beneficiaries not only those persons deprived of their liberty, but also those who work in the center and those who enter as visitors, given that the identified events of risk could come to fruition to the detriment of all the persons who may be in the Arrest and Preventive Detention Center of Cabimas.
42. As it pertains to the urgency requirement, the Commission considers that it is met, since the facts described, given the multiple risk factors, and the recent acts of armed violence that took place in the center, are sufficient to show the existence of a current risk that requires the adoption of immediate measures in favor of the persons who are in that place, in order to prevent the persistence of the conditions informed, and that new acts of violence occur, which may even have a greater extent. The Commission notes, based on the information provided by the applicants, that the local authorities, in full knowledge of the situation that the center is going through, have reportedly requested that the center be “permanently closed” as from December 2017, which has not been possible to be carried out to date. Also, there is not a concrete plan to prevent the collapse of other detention centers in the area in case of that closure. In the same way, the available information indicates that, despite the measures adopted by the State, these allegedly have a programmatic nature, with two people having already died in 2020 due to the lack of medical care.
43. Regarding the requirement of risk of irreparable harm, the Commission considers that it is complied with, insofar as the possible impact on the rights to life, personal integrity and health constitutes the maximum situation of irreparability.
IV. BENEFICIARIES
44. The Commission hereby declares that the beneficiaries of this precautionary measure are the men and women deprived of their liberty at the Arrest and Preventive Detention Center of Cabimas, as well as those who work there and those who enter as visitors, all of whom are susceptible to be identified pursuant to Article 25 of the Rules of Procedure.
V. DECISION
45. The Commission considers that this matter meets prima facie the requirements of seriousness, urgency and irreparable harm contained in Article 25 of its Rules of Procedure. Consequently, the Commission requests that the State of Venezuela:
a) immediately adopt the necessary measures to protect the life and personal integrity of the proposed beneficiaries. These measures must be adopted by the State, taking into account the different conditions of the persons who are deprived of their liberty, in particular, pregnant women and those who are mothers;
b) adopt the relevant measures to adapt the described situation to the applicable international standards regarding treatment of persons who are deprived of their liberty, which may include confiscating all weapons which are found in the possession of the inmates, reducing overcrowding and improving the conditions of detention, providing medical care to those who require it, having qualified and sufficient personnel to ensure adequate and effective control, custody and surveillance of the center, separating convicted persons from those who are not convicted, among other measures;
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c) consult and agree upon the measures to be adopted with the representatives of this precautionary measure;
d) report on the measures taken regarding the investigation of the alleged facts which gave rise to this resolution, so as to prevent such events from reoccurring.
46. The Commission requests that the State of Venezuela report, within 15 days as from the date of this resolution, on the adoption of the precautionary measures requested and to update this information periodically.
47. The Commission emphasizes that, in accordance with Article 25 (8) of its Rules of Procedure, the granting of this precautionary measure and its adoption by the State does not constitute a prejudgment on any violation of the rights protected in the applicable human rights instruments.
48. The Commission requests that the Executive Secretariat of the IACHR notify the present resolution to the State of Venezuela and the applicant.
49. Approved on February 6, 2020 by Esmeralda Arosemena de Troitiño, President; Joel Hernández García, First Vice-President; Antonia Urrejola Noguera, Second Vice-President; Margarette May Macaulay; and Flávia Piovesan, members of the IACHR.
Paulo Abrão Executive Secretary
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