Related Rule
Venezuela
Practice Relating to Rule 100. Fair Trial Guarantees
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
Article 7. In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the [1966] International Covenant on Civil and Political Rights and Article 27(2) of the [1969] American Convention on Human Rights, the guarantee of the [following] rights must not be restricted:
11. The [right to] due process. 
Venezuela, Law on the State of Emergency, 2001, Article 7(11).
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right … to request the immediate presence of his or her parents, representatives or guardians”. 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 541.
Venezuela’s Constitution (2009) states:
The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. … In such cases, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the … right to due process. 
Venezuela, Constitution, 2009, Article 337.
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.” 
Venezuela, Constitution, 2009, Article 338.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
No one may be sentenced without a trial … that is in accordance with the provisions of this Code and safeguards the rights and guarantees of due process enshrined in the Constitution of the Republic, laws, treaties, conventions and international agreements to which the Republic is a party. 
Venezuela, Penal Procedure Code, 2009, Article 1.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
No one may be sentenced without a trial … that is in accordance with the provisions of this code and safeguards the rights and guarantees of due process enshrined in the Constitution of the Republic, laws, treaties, conventions and international agreements to which the Republic is a party. 
Venezuela, Penal Procedure Code, 2012, Article 1.
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
[A]rticle 271 of the Constitution provides:
The proceeding for the offences of [international organized crimes, acts against the public heritage of other States and against human rights] … will be oral, [and with guarantees of] … due process. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 13.
[emphasis in original]
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
55. With regard to the protection of rights enshrined in the Constitution of the Bolivarian Republic of Venezuela in states of emergency, articles 337 to 339 provide that guarantees contained in the Constitution may be temporarily suspended, with the exception of “those relating to the right to life, the prohibition of the holding of persons incommunicado or torture, the right to due process, the right to information and other intangible human rights”.
56. On the question of legislative action to give effect to this constitutional provision, it is important to note that, under the present Government, no state of emergency has been decreed, notwithstanding the fuel shortage during the 2002 oil strike or coup d’état.
57. The Venezuelan State legislated on the matter and in 2001 the States of Emergency Act entered into force, setting out in its article 7 the relevant guiding principles. Under that article, and in accordance with article 339 of the Constitution of the Bolivarian Republic of Venezuela, article 4, paragraph 2, of the International Covenant on Civil and Political Rights and article 27, paragraph 2, of the American Convention on Human Rights, no restrictions can be placed on guarantees relating inter alia to … due process …
58. Continuing with the interpretation of constitutional precepts, article 338 covers the three kinds of states of emergency and establishes, in accordance with the principle of gradualism, factual circumstances that may justify them and their limitation in time … [A] state of internal or external disturbance may be declared in the event of internal or external conflict that seriously endangers the security of the nation, its citizens or institutions, for a period of up to 90 days, renewable for the same period of time. 
Venezuela, Fourth periodic report to the Human Rights Committee, 29 April 2013, UN Doc. CCPR/C/VEN/4, submitted 18 December 2012, §§ 55–58.
[footnotes in original omitted]
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a trial … carried out … before a judge or impartial tribunal”. 
Venezuela, Penal Procedure Code, 2009, Article 1.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a trial … carried out … before a judge or impartial tribunal”. 
Venezuela, Penal Procedure Code, 2012, Article 1; see also Explanatory Notes, p. 2.
Venezuela’s Law on the Protection of Children and Adolescents (2007) states under the heading “Presumption of Innocence”: “An adolescent’s innocence shall be presumed until a final judicial sentence determines the existence of a criminal act, the accused’s participation [therein] and imposes a penalty.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 540.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “Any person accused of committing a punishable offence has the right to be presumed innocent and to be treated as such while proof of his or her guilt is confirmed through a final sentence.” 
Venezuela, Penal Procedure Code, 2009, Article 8.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “Any person accused of committing a punishable offence has the right to be presumed innocent and to be treated as such while proof of his or her guilt is confirmed through a final sentence.” 
Venezuela, Penal Procedure Code, 2012, Article 8; see also Explanatory Notes, p. 2.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be informed clearly and in detail of the acts of which he or she is accused.” 
Venezuela, Penal Procedure Code, 2009, Article 125(1); see also Articles 131 and 347.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be informed clearly and in detail of the acts of which he or she is accused.” 
Venezuela, Penal Procedure Code, 2012, Article 127(1); see also Articles 133 and 330.
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the [1966] International Covenant on Civil and Political Rights and Article 27(2) of the [1969] American Convention on Human Rights, the guarantee of the [following] rights must not be restricted:
4. The [right to] equality before the law. 
Venezuela, Law on the State of Emergency, 2001, Article 7(4).
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right … to request the immediate presence of … his or her legal counsel.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 541.
The Law also states: “Every adolescent has the right to be heard during the investigation, trial or execution of a sentence.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 542.
The Law further states: “The defence is inviolable from the beginning of the investigation until the imposed penalty has been fully served. If an adolescent lacks a private defence counsel, he or she shall be granted the assistance of a specialized public defence counsel.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 544.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The right to a defence is inviolable at every stage of the proceedings. The judges must guarantee it without preferences or inequalities.” 
Venezuela, Penal Procedure Code, 2009, Article 12; see also Article 125(3).
The Code further states: “The indicted [person] shall have the right to elect a defence lawyer whom he or she trusts. If he or she does not do so, the judge will designate a public defender starting with the first stage of the proceedings or … before the [person] makes a statement.” 
Venezuela, Penal Procedure Code, 2009, Article 137; see also Article 10.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The right to a defence is inviolable at every stage of the proceedings. The judges must guarantee it without preferences or inequalities.” 
Venezuela, Penal Procedure Code, 2012, Article 12; see also Article 127(3).
The Code further states: “The indicted [person] shall have the right to elect a defence lawyer whom he or she trusts. If he or she does not do so, the judge will designate a public defender starting with the first stage of the proceedings or … before the [person] makes a statement.” 
Venezuela, Penal Procedure Code, 2012, Article 139; see also Articles 10 and 515 and Explanatory Notes, pp. 3 and 5.
The Code also states: “The indicted [person] will have the following rights: … To be heard during the trial whenever he or she requests so.” 
Venezuela, Penal Procedure Code, 2012, Article 127(12); see also Article 312.
The Code further states:
Article 132. …
The indicted [person] will have the right to … testify as many times as he or she wishes, as long as his or her statement is relevant and does not appear to be only a means to delay the trial.
In any case, the indicted [person]’s statement will be null and void if not made in the presence of his or her defence.
Article 133.
Before the indicted [person] makes his or her statement …
... it will be … explained to him or her that the statement is a means of defence and, therefore, he or she has the right to explain anything that might detract from the accusations against him or her, and request any measures he or she considers necessary. 
Venezuela, Penal Procedure Code, 2012, Articles 132–133.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a trial … carried out without undue delay”. 
Venezuela, Penal Procedure Code, 2009, Article 1; see also Article 327.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a trial … carried out without undue delay”. 
Venezuela, Penal Procedure Code, 2012, Article 1; see also Articles 309–310 and Explanatory Notes pp. 3–4.
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
[A]rticle 271 of the Constitution provides:
The proceeding for the offences of [international organized crimes, acts against the public heritage of other States and against human rights] will be brief. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 13.
[emphasis in original]
In 2004, in the Recao case, the Constitutional Chamber of Venezuela’s Supreme Tribunal of Justice was called upon to decide on an appeal against the judgment of the Court Martial, which dismissed the constitutional complaint of the defendant regarding the failure of the Military Prosecutor to request the termination of the proceedings. The tribunal held:
[T]he Prosecution Office … is autonomous … [and] cannot be obliged … to request the termination of the proceedings …
However, it can be compelled to conclude an investigation within a given period of time but this does not mean that it must conclude the latter through the termination of the proceedings.
Thus, Article 26 of the Constitution of the Bolivarian Republic of Venezuela provides that, within the due process guarantees, every person that approaches the … judicial bodies [has a right to] promptly obtain a decision [on the proceedings]. Similarly, [persons have the right] to obtain, among other aspects, an expeditious justice without undue delays …
However, as a corollary of what is mentioned in Article 26 of the Constitution of the Bolivarian Republic of Venezuela, it is found that Article 313 of the Penal Procedure Code establishes the possibility for the indicted person to access tribunals … to obtain the fixing of a time limit … in order for the Prosecution Office to conclude the investigation … [A]s the case requires, this refers to filing the indictment [or] requesting the termination of the proceedings. …
This thus concerns the obligation of the Prosecution Office to terminate the preparatory phase [of the proceedings] as required by the case in view of the constitutional exigency of an expeditious justice … [However,] this does not mean that through this guarantee one can infringe upon the autonomy of this organ [and oblige it] to conclude an investigation in a given way. The Prosecution Office … will seek to terminate the preparatory phase [of the proceedings] by filing the indictment [or] requesting the termination of proceedings. … It is clear that in “the cases referring to the investigation of … war crimes” a time limit cannot be set for the termination of the preparatory phase [of the proceedings], as provided in Article 313 of the Penal Procedure Code.
Thus, as the Prosecution Office cannot be forced to request the termination of proceedings, the only thing that the lawyers of Isaac Pérez Recao could do was request the diligent termination of the investigation, in accordance with Article 313 of the Penal Procedure Code, as held by the [first instance] tribunal …
However, it is necessary to clarify that the lawyers [that presented the appeal] … argued that they cannot use this provision (Article 313 of the Penal Procedure Code), as the offence of military rebellion is considered to be a crime connected to war crimes.
In the opinion of this Chamber, that assertion is not absolute …
… [O]ne cannot say that a military rebellion is always an offence connected with war crimes. …
According to the assertions of the lawyers [presenting the appeal], Isaac Pérez Recao is only indicted for the offence of military rebellion, and it is thus not possible to conclude that Article 313 of the Penal Procedure Code, relating to the possibility for the indicted person to access the supervisory judge to obtain the fixing of a time limit in order for the Prosecution Office to conclude the investigation, cannot be used in the current case.
Thus, seeing as this possibility … was not exhausted before presenting the current appeal, this Chamber concludes that the appeal is inadmissible, in accordance with Article 6(5) of the Organic Law on the Protection of Constitutional Rights and Guarantees, as was correctly found by the Court Martial.
As a result, this Chamber must dismiss the appeal and confirm the decision of the Court Martial on 21 March 2003, which dismissed the constitutional complaint formulated by the private defendants of Isaac Pérez Recao. 
Venezuela, Supreme Tribunal of Justice, Recao case, Judgment, 27 July 2004, Section V, pp. 8–11.
[emphasis in original]
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
Article 355. … [T]he presiding judge will call all the witnesses, one at a time …
Article 356. After swearing in the … witness … the presiding judge will accord him or her the right to speak …
At the end of the account, [the judge] will permit direct interrogation. The person proposing the witness will begin, followed by the other parties in the order determined by the presiding judge; efforts will be made to ensure that the defence is the last to interrogate [the witness]. 
Venezuela, Penal Procedure Code, 2009, Articles 355–356.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
Article 338. … [T]he judge will call all the witnesses, one at a time …
Article 339. After swearing in the … witness … the judge will accord him or her the right to speak …
At the end of the account, [the judge] will permit direct interrogation. The person proposing the [witness] will begin, followed by the other parties in the order determined by the judge; efforts will be made to ensure that the defence is the last to interrogate [the witness]. 
Venezuela, Penal Procedure Code, 2012, Articles 338–339.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … to be assisted free of charge by a translator or interpreter, if he or she does not understand or speak Spanish.” 
Venezuela, Penal Procedure Code, 2009, Article 125(4); see also Article 167.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … to be assisted free of charge by a translator or interpreter, if he or she does not understand or speak Spanish.” 
Venezuela, Penal Procedure Code, 2012, Article 127(4); see also Article 151.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To not be judged in his or her absence, except in accordance with the Constitution of the Republic.” 
Venezuela, Penal Procedure Code, 2009, Article 125(12); see also Article 332.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The trial will take place with the uninterrupted presence of the judge and the parties”. 
Venezuela, Penal Procedure Code, 2012, Article 315; see also Explanatory Notes p. 5.
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated: “On 10 December 2001, in accordance with Article 399 of the Penal Procedure Code, the oral hearing in the proceedings for the extradition of José María Ballestas Tirado, requested by Colombia, was carried out with the participation of all the parties.” 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 2.
(emphasis in original)
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right not to incriminate himself or herself”. 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 541.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be granted the constitutional precept that exempts him or her from testifying”. 
Venezuela, Penal Procedure Code, 2009, Article 125(9); see also Articles 130–131 and 347.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … To be granted the constitutional precept that exempts him or her from testifying”. 
Venezuela, Penal Procedure Code, 2012, Article 127(8); see also Articles 132–133 and 330.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a public … trial”. 
Venezuela, Penal Procedure Code, 2009, Article 1; see also Articles 15 and 333.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a public … trial”. 
Venezuela, Penal Procedure Code, 2012, Article 1; see also Articles 15, 316 and 404 and Explanatory Notes, p. 3.
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated: “The Criminal Appeals Chamber notified [the parties] on 6 December 2001, in accordance with Article 399 of the Penal Procedure Code, … so that they attend the public … hearing”. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 1.
The tribunal further stated:
[A]rticle 271 of the Constitution provides:
The proceeding for the offences of [international organized crimes, acts against the public heritage of other States and against human rights] … will be public. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 13.
[emphasis in original]
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The Prosecution Office or the victim … can appeal … the decision to terminate proceedings.” 
Venezuela, Penal Procedure Code, 2009, Article 325.
The Code further states:
Parties can only challenge judgments that are unfavourable to them.
Defendants can always challenge a judgment which violates their statutory or constitutional rights to presence, assistance and representation, even when they contributed to the violation which is the object of the appeal. 
Venezuela, Penal Procedure Code, 2009, Article 436.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The Prosecution Office or the victim … can appeal … the decision to terminate proceedings.” 
Venezuela, Penal Procedure Code, 2012, Article 307.
The Code further states:
Parties can only challenge judgments that are unfavourable to them.
Defendants can always challenge a judgment which violates their statutory or constitutional rights to presence, assistance and representation, even when they contributed to the violation which is the object of the appeal. 
Venezuela, Penal Procedure Code, 2012, Article 427.
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “The remission, dismissal or acquittal of a case impedes a new investigation or trial against an adolescent for the same act, even if the charge is modified or if new circumstances come to light.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 547.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
No one may be prosecuted more than once for the same act.
However, a new prosecution will be admissible when:
1. The first was carried out before a tribunal that did not have competency to hear the matter, and it concluded the proceedings for this reason.
2. When the first was rejected due to shortcomings in the … [proceedings]. 
Venezuela, Penal Procedure Code, 2009, Article 20.
The Code further states: “The … termination of proceedings … [p]revents any new prosecution for the same act against the indicted or accused [person] in whose favour the proceedings ruled, except as provided for in Article 20 of this Code”. 
Venezuela, Penal Procedure Code, 2009, Article 319.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
No one may be prosecuted more than once for the same act.
A new prosecution will be admissible when:
1. The first was carried out before a tribunal that did not have competency to hear the matter, and it concluded the proceedings for this reason.
2. When the first was rejected due to shortcomings in the … [proceedings]. 
Venezuela, Penal Procedure Code, 2012, Article 20.
The Code further states: “The … termination of proceedings … [p]revents any new prosecution for the same act against the indicted or accused [person] in whose favour the proceedings ruled, except as provided for in Article 20 of this Code”. 
Venezuela, Penal Procedure Code, 2012, Article 301.
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
The Bolivarian Republic of Venezuela and the Republics of Bolivia, Colombia, Ecuador and Peru signed the Bolivarian Extradition Agreement on 18 July 1911 in Caracas … [which provides]:
Article 5.- Extradition shall not be granted in the following cases:
c) If the individual whose extradition is requested has already been judged and set free or has served his or her sentence, or if the acts of which he or she is accused have been the object of an amnesty or a pardon. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, pp. 4–5.
[emphasis in original]