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(Preliminary Objections) In INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF BREWER CARÍAS v. VENEZUELA JUDMENT OF MAY 26, 2014 (Preliminary objections) In the case of Allan Randolph Brewer Carías v. the Bolivarian Republic of Venezuela, the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), composed of the following judges: 1 Humberto Antonio Sierra Porto, President Roberto F. Caldas, Vice President Manuel E. Ventura Robles, Judge Diego García-Sayán, Judge Alberto Pérez Pérez, Judge, and Eduardo Ferrer Mac-Gregor Poisot, Judge also present, Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary, in accordance with Articles 62(3) of the American Convention on Human Rights (hereinafter also “the American Convention” or “the Convention”) and Articles 31, 32, 42, 65 and 67 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), delivers this judgment structured as follows: 1 On July 11, 2012, Judge Eduardo Vio Grossi recused himself from taking part in this case pursuant to the provisions of Article 19(2) of the Court’s Statute and Article 21 of its Rules of Procedure; his recusal was accepted by the President of the Court in consultation with the other judges. Table of contents I INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE ........................... 3 II PROCEEDINGS BEFORE THE COURT .................................................................... 4 III PRELIMINARY OBJECTIONS .............................................................................. 7 A. The “preliminary objections” presented by the State challenging some judges and the Secretary of the Court, and rejecting the recusal presented by Judge Eduardo Vio Grossi .................................................................................... 7 B. The preliminary objection of failure to exhaust domestic remedies .............. 8 B.1. Arguments of the State, the Commission, and the representative ..................... 8 B.2. Determination of the pertinent facts to decide the preliminary objection on the failure to exhaust domestic remedies .................................................................... 13 B.2.1. Background ........................................................................................... 13 B.2.1.1. From the end of 2001 to April 2002............................................14 B.2.1.2. April 11, 12 and 13, 2002 ......................................................... 14 B.2.1.3. Reactions to the events of April 11, 12 and 13, 2002 ................... 16 B.2.2. Facts relating to the criminal proceedings ................................................. 16 B.2.2.1. Investigation of Pedro Carmona and the events of April 11, 12 and 13, 2002 ............................................................................................. 16 B.2.2.2. Accusation against Mr. Brewer Carías at the investigation stage .... 18 B.2.2.3. Indictment of Mr. Brewer Carías ................................................ 20 B.2.2.4. The preventive detention order .................................................. 23 B.2.2.5. Continuation of the proceedings after the preventive detention order25 B.3. Considerations of the Court ........................................................................ 26 B.3.1. Presentation of the objection at the proper procedural stage ....................... 26 B.3.2. Presentation of appropriate and effective remedies to exhaust the domestic jurisdiction ...................................................................................................... 27 B.3.3 Exceptions to prior exhaustion of domestic remedies (Article 46(2) of the American Convention) ...................................................................................... 33 B.3.3.1 The domestic legislation of the State does not afford due process of law for the protection of the right or rights that have allegedly been violated (Article 46(2)(a) .............................................................................................. 34 B.3.3.2. The party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting (Article 46(2)(b) ............................................................................................. 35 B.3.3.3. There has been unwarranted delay in rendering a final judgment under the aforementioned remedies (Article 46(2)(c) ................................................. 38 B.3.3.3.1. Time frame and procedural stage established in domestic law for deciding requests for annulment ........................................................... 39 B.3.3.3.2. Need for the presence of the accused at the preliminary hearing and reasons why the hearing was postponed ................................................ 43 B.3.4. Conclusion concerning the preliminary objection of failure to exhaust domestic remedies ........................................................................................................ 46 IV OPERATIVE PARAGRAPHS ............................................................................... 46 2 I INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE 1. The case submitted to the Court. On March 7, 2012, under the provisions of Articles 51 and 61 of the American Convention, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) submitted the case of “Allan R[andolph] Brewer Carías” 2 against the Bolivarian Republic of Venezuela (hereinafter “the State” or “Venezuela”) to the jurisdiction of the Inter-American Court (hereinafter “submission brief”). The case relates to “the [presumed] lack of judicial guarantees and judicial protection in the proceedings brought against the constitutional lawyer, Allan R. Brewer Carías for the crime of conspiracy to change the Constitution by violent means, in the context of the events of April 11 to 13, 2002; in particular his supposed participation in the drafting of the so-called ‘Carmona Decree’ ordering the dissolution of the public authorities and the establishment of a ‘government of democratic transition.’” The Commission concluded that “the fact that three temporary judges were responsible for hearing the preliminary stage of the criminal proceedings in itself constituted a violation of judicial guarantees.” The Commission also considered that, in this case, “the fact that one of the temporary judges was suspended and replaced two days after having filed a complaint for failure to comply with an order he had issued requiring that the accused be given access to the complete file on his case, together with the rules and practices in Venezuela regarding the appointment, dismissal, and provisional status of judges, constituted violations of the guarantees of judicial independence and impartiality and contravened the right to judicial protection.” Lastly, the Commission considered that “not being able to make photocopies of the file and to access it in its entirety violated the [presumed] victim’s right to have adequate means for preparing his defense.” 2. Proceedings before the Commission. The proceedings before the Commission were as follows: a) Petition. On January 24, 2007, Pedro Nikken, Helio Bicudo, Claudio Grossman, Juan E. Méndez, Douglass Cassel and Héctor Faúndez Ledesma (hereinafter “the representatives”) submitted the initial petition. b) Admissibility Report. On September 8, 2009, the Commission approved Admissibility Report No. 97/09,3 in which it concluded that “the […] case met the requirements for admissibility set out in Articles 46 and 47 of the American Convention as regards claims related to Articles 1, 2, 8, 13 and 25, while that the claims under Articles 7, 11, 22 and 24 are inadmissible.” c) Merits Report. On November 3, 2011, the Commission approved Merits Report No. 171/11,4 pursuant to Article 50 of the Convention (hereinafter also “the Merits Report” or “Report No. 171/11”), in which it reached a series of conclusions and made several recommendations to the State: 2 Allan Brewer Carías is an expert in constitutional law. He has been an alternate Senator, Minister, and member of the 1999 National Constituent Assembly. Curriculum Vitae of Allan R. Brewer Carías (file of annexes to the report of the Commission, appendix, tome V, folios 1770 to 1922). 3 Cf. Admissibility Report No. 97/09, Petition 84-07, Allan R. Brewer Carías, Venezuela, September 8, 2009 (file of annexes to the report, appendix, tome IV, folios 3607 to 3632). 4 Cf. Merits Report No. 171/11, Case of 12.724, Allan R. Brewer Carías, Venezuela, November 3, 2011 (Merits Report, tome I, folios 6 to 46). 3 a. Conclusions. The Commission concluded that the State was “responsible for the violation of the rights of Allan R. Brewer Carías established in Articles 8 and 25 of the American Convention, in relation to its Articles 1(1) and 2. However, the Commission concluded that the State was “not responsible for the violation of the right established in Article 13 of the American Convention.” b. Recommendations. Consequently, the Commission made a series of recommendations to the State: 1. That [it] adopt measures to ensure the independence of the judiciary, with reforms to strengthen the procedures whereby judges and prosecutors are appointed and removed, to affirm their tenure in those positions, and to eliminate the temporary status of the vast majority of judges and prosecutors, in order to uphold the rights to judicial protection and to a fair trial established in the American
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